85R7065 JSC-D
By: Moody H.B. No. 2931
A BILL TO BE ENTITLED
AN ACT
relating to the nonsubstantive revision of certain provisions of
the Code of Criminal Procedure, including conforming amendments.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. NONSUBSTANTIVE REVISION OF CERTAIN PROVISIONS OF THE
CODE OF CRIMINAL PROCEDURE
SECTION 1.01. Title 1, Code of Criminal Procedure, is amended by adding Chapter 18A to read as follows:
CHAPTER 18A. DETECTION, INTERCEPTION, AND USE OF WIRE, ORAL, AND
ELECTRONIC COMMUNICATIONS
SUBCHAPTER A. GENERAL PROVISIONS
Art. 18A.001. DEFINITIONS
Art. 18A.002. NONAPPLICABILITY
SUBCHAPTER B. APPLICATION FOR INTERCEPTION ORDER
Art. 18A.051. JUDGE OF COMPETENT JURISDICTION
Art. 18A.052. REQUEST FOR FILING OF INTERCEPTION
APPLICATION
Art. 18A.053. JURISDICTION
Art. 18A.054. ALTERNATE JURISDICTION
Art. 18A.055. APPLICATION FOR INTERCEPTION ORDER
SUBCHAPTER C. ISSUANCE OF INTERCEPTION ORDER AND RELATED ORDERS
Art. 18A.101. OFFENSES FOR WHICH INTERCEPTION ORDER
MAY BE ISSUED
Art. 18A.102. JUDICIAL DETERMINATIONS REQUIRED FOR
ISSUANCE OF INTERCEPTION ORDER
Art. 18A.103. CONTENTS OF INTERCEPTION ORDER
Art. 18A.104. LIMITATION ON COVERT ENTRY
Art. 18A.105. AUTHORITY TO ISSUE CERTAIN ANCILLARY
ORDERS
Art. 18A.106. ORDER TO THIRD PARTY TO ASSIST WITH
EXECUTION OF INTERCEPTION ORDER
Art. 18A.107. DURATION OF INTERCEPTION ORDER
Art. 18A.108. EXTENSION OF INTERCEPTION ORDER
Art. 18A.109. REPORT ON NEED FOR CONTINUED
INTERCEPTION
Art. 18A.110. SUBSEQUENT CRIMINAL PROSECUTION RELATED
TO INTERCEPTION ORDER
SUBCHAPTER D. INTERCEPTION ORDER FOR COMMUNICATION BY
SPECIFIED PERSON
Art. 18A.151. REQUIREMENTS REGARDING INTERCEPTION
ORDER FOR COMMUNICATION BY SPECIFIED
PERSON
Art. 18A.152. IMPLEMENTATION OF INTERCEPTION ORDER
Art. 18A.153. MOTION TO MODIFY OR QUASH INTERCEPTION
ORDER
SUBCHAPTER E. EMERGENCY INSTALLATION AND USE OF INTERCEPTION
DEVICE
Art. 18A.201. DEFINITIONS
Art. 18A.202. POSSESSION AND USE OF INTERCEPTION
DEVICE IN EMERGENCY SITUATION
Art. 18A.203. CONSENT FOR EMERGENCY INTERCEPTION
Art. 18A.204. WRITTEN ORDER AUTHORIZING INTERCEPTION
Art. 18A.205. CERTAIN EVIDENCE NOT ADMISSIBLE
SUBCHAPTER F. DETECTION OF CELLULAR TELEPHONE OR OTHER WIRELESS
COMMUNICATIONS DEVICE IN CORRECTIONAL OR DETENTION FACILITY
Art. 18A.251. DEFINITION
Art. 18A.252. USE OF INTERCEPTION DEVICE BY INSPECTOR
GENERAL
Art. 18A.253. REPORTING USE OF INTERCEPTION DEVICE
Art. 18A.254. NO EXPECTATION OF PRIVACY
SUBCHAPTER G. AGENCIES AND PERSONNEL AUTHORIZED TO POSSESS AND USE
INTERCEPTION DEVICES
Art. 18A.301. DEPARTMENT OF PUBLIC SAFETY AUTHORIZED
TO POSSESS AND USE INTERCEPTION DEVICE
Art. 18A.302. TEXAS DEPARTMENT OF CRIMINAL JUSTICE
AUTHORIZED TO POSSESS AND USE
INTERCEPTION DEVICE
Art. 18A.303. TEXAS JUVENILE JUSTICE DEPARTMENT
AUTHORIZED TO POSSESS AND USE
INTERCEPTION DEVICE
SUBCHAPTER H. DISCLOSURE AND USE OF INTERCEPTED COMMUNICATIONS
Art. 18A.351. DISCLOSURE OR USE OF INTERCEPTED
COMMUNICATIONS
Art. 18A.352. DISCLOSURE UNDER OATH
Art. 18A.353. PRIVILEGED COMMUNICATIONS
Art. 18A.354. DISCLOSURE OR USE OF INCIDENTALLY
INTERCEPTED COMMUNICATIONS
Art. 18A.355. NOTICE AND DISCLOSURE OF INTERCEPTION
APPLICATION, INTERCEPTION ORDER, AND
INTERCEPTED COMMUNICATIONS
Art. 18A.356. NOTICE OF INTERCEPTION REQUIRED
Art. 18A.357. COMMUNICATIONS RECEIVED IN EVIDENCE
Art. 18A.358. SUPPRESSION OF CONTENTS OF INTERCEPTED
COMMUNICATIONS
SUBCHAPTER I. USE AND DISPOSITION OF APPLICATIONS AND ORDERS
Art. 18A.401. SEALING OF APPLICATION OR ORDER
Art. 18A.402. CUSTODY OF APPLICATIONS AND ORDERS
Art. 18A.403. DISCLOSURE OF APPLICATION OR ORDER
Art. 18A.404. DESTRUCTION OF APPLICATION OR ORDER
SUBCHAPTER J. CREATION, USE, AND DISPOSITION OF RECORDINGS
Art. 18A.451. CREATION OF RECORDINGS
Art. 18A.452. DUPLICATION OF RECORDINGS
Art. 18A.453. SEALING AND CUSTODY OF RECORDINGS
Art. 18A.454. DESTRUCTION OF RECORDINGS
Art. 18A.455. PREREQUISITE FOR USE OR DISCLOSURE OF
RECORDING IN CERTAIN PROCEEDINGS
SUBCHAPTER K. VIOLATION; SANCTIONS
Art. 18A.501. CONTEMPT
Art. 18A.502. RECOVERY OF CIVIL DAMAGES BY AGGRIEVED
PERSON
Art. 18A.503. ACTION BROUGHT BY FEDERAL OR STATE
GOVERNMENT; INJUNCTION; PENALTIES
Art. 18A.504. GOOD FAITH DEFENSE AVAILABLE
Art. 18A.505. NO CAUSE OF ACTION
SUBCHAPTER L. REPORTS
Art. 18A.551. REPORT OF INTERCEPTED COMMUNICATIONS BY
JUDGE
Art. 18A.552. REPORT OF INTERCEPTED COMMUNICATIONS BY
PROSECUTOR
Art. 18A.553. REPORT OF INTERCEPTED COMMUNICATIONS BY
DEPARTMENT OF PUBLIC SAFETY
CHAPTER 18A. DETECTION, INTERCEPTION, AND USE OF WIRE, ORAL, AND
ELECTRONIC COMMUNICATIONS
SUBCHAPTER A. GENERAL PROVISIONS
Art. 18A.001. DEFINITIONS. In this chapter:
(1) "Access," "computer," "computer network,"
"computer system," and "effective consent" have the meanings
assigned by Section 33.01, Penal Code.
(2) "Aggrieved person" means a person who was a party
to an intercepted wire, oral, or electronic communication or a
person against whom the interception was directed.
(3) "Aural transfer" means a transfer containing the
human voice at any point between and including the point of origin
and the point of reception.
(4) "Communication common carrier" means a person
engaged as a common carrier for hire in the transmission of wire or
electronic communications.
(5) "Computer trespasser" means a person who accesses
a protected computer without effective consent of the owner and has
no reasonable expectation of privacy in a communication transmitted
to, through, or from the protected computer. The term does not
include a person who accesses the protected computer under an
existing contractual relationship with the owner or operator of the
computer.
(6) "Contents," with respect to a wire, oral, or
electronic communication, includes any information concerning the
substance, purport, or meaning of that communication.
(7) "Covert entry" means an entry that is made into or
onto premises and that, if not authorized by a court order under
this chapter, would violate the Penal Code.
(8) "Department" means the Department of Public Safety
of the State of Texas.
(9) "Director" means:
(A) the public safety director of the department;
or
(B) if the public safety director is absent or
unable to serve, the assistant director of the department.
(10) "Electronic communication" means a transfer of
any signs, signals, writing, images, sounds, data, or intelligence
transmitted wholly or partly by a wire, radio, electromagnetic,
photoelectronic, or photo-optical system. The term does not
include:
(A) a wire or oral communication;
(B) a communication made through a tone-only
paging device; or
(C) a communication from a tracking device.
(11) "Electronic communications service" means a
service that provides to users of the service the ability to send or
receive wire or electronic communications.
(12) "ESN reader," "pen register," and "trap and trace
device" have the meanings assigned by Article 18B.001.
(13) "Intercept" means the aural or other acquisition
of the contents of a wire, oral, or electronic communication
through the use of an interception device.
(14) "Interception device" means an electronic,
mechanical, or other device that may be used for the nonconsensual
interception of wire, oral, or electronic communications. The term
does not include a telephone or telegraph instrument, the equipment
or a facility used for the transmission of electronic
communications, or a component of the equipment or a facility used
for the transmission of electronic communications if the
instrument, equipment, facility, or component is:
(A) provided to a subscriber or user by a
provider of a wire or electronic communications service in the
ordinary course of the service provider's business and used by the
subscriber or user in the ordinary course of the subscriber's or
user's business;
(B) provided by a subscriber or user for
connection to the facilities of a wire or electronic communications
service for use in the ordinary course of the subscriber's or user's
business;
(C) used by a communication common carrier in the
ordinary course of the carrier's business; or
(D) used by an investigative or law enforcement
officer in the ordinary course of the officer's duties.
(15) "Interception order" means an order authorizing
the interception of a wire, oral, or electronic communication.
(16) "Investigative or law enforcement officer"
means:
(A) an officer of this state or a political
subdivision of this state who is authorized by law to investigate or
make arrests for offenses described by Article 18A.101; or
(B) an attorney authorized by law to prosecute or
participate in the prosecution of those offenses.
(17) "Judge of competent jurisdiction" means a judge
described by Article 18A.051.
(18) "Mobile tracking device" has the meaning assigned
by Article 18B.201.
(19) "Oral communication" means a communication
uttered by a person exhibiting an expectation that the
communication is not subject to interception under circumstances
justifying that expectation. The term does not include an
electronic communication.
(20) "Prosecutor" means a district attorney, criminal
district attorney, or county attorney performing the duties of a
district attorney, with jurisdiction in the county within an
administrative judicial region described by Article 18A.053.
(21) "Protected computer" means a computer, computer
network, or computer system that is:
(A) owned by a financial institution or
governmental entity; or
(B) used by or for a financial institution or
governmental entity, if conduct constituting an offense affects
that use.
(22) "Residence" means a structure or the portion of a
structure used as a person's home or fixed place of habitation to
which the person indicates an intent to return after a temporary
absence.
(23) "User" means a person who uses an electronic
communications service and is authorized by the service provider to
use the service.
(24) "Wire communication" means an aural transfer made
wholly or partly through the use of facilities for the transmission
of communications by the aid of wire, cable, or other similar
connection between the point of origin and the point of reception,
including the use of the connection in a switching station, if those
facilities are provided or operated by a person authorized to
provide or operate the facilities for the transmission of
communications as a communication common carrier. (Code Crim.
Proc., Art. 18.20, Secs. 1(1), (2), (3), (4), (5), (6), (7) (part),
(8), (9), (10), (11), (12), (13), (14), (15), (16), (18), (21),
(24), (25), (26); New.)
Art. 18A.002. NONAPPLICABILITY. This chapter does not
apply to conduct described as an affirmative defense under Section
16.02(c), Penal Code, except as otherwise specifically provided by
that section. (Code Crim. Proc., Art. 18.20, Sec. 17.)
SUBCHAPTER B. APPLICATION FOR INTERCEPTION ORDER
Art. 18A.051. JUDGE OF COMPETENT JURISDICTION. (a) For
purposes of this chapter, a judge of competent jurisdiction is a
judge from the panel of nine active district judges with criminal
jurisdiction who is appointed by the presiding judge of the court of
criminal appeals under this article.
(b) The presiding judge of the court of criminal appeals, by
order filed with the clerk of that court, shall appoint one district
judge from each of the administrative judicial regions of this
state to serve at the presiding judge's pleasure as the judge of
competent jurisdiction in that administrative judicial region.
(c) The presiding judge shall fill vacancies as those
vacancies occur in the same manner. (Code Crim. Proc., Art. 18.20,
Secs. 1(7), 3(a).)
Art. 18A.052. REQUEST FOR FILING OF INTERCEPTION
APPLICATION. (a) The director may, based on written affidavits,
request in writing that a prosecutor apply for an interception
order.
(b) The head of a local law enforcement agency or, if the
head of the agency is absent or unable to serve, the acting head of
the local law enforcement agency may, based on written affidavits,
request in writing that a prosecutor apply for an interception
order.
(c) Before making a request under Subsection (b), the head
of a local law enforcement agency must submit the request and
supporting affidavits to the director. The director shall make a
written finding as to whether the request and supporting affidavits
establish that other investigative procedures have been attempted
and have failed or those procedures reasonably appear unlikely to
succeed or to be too dangerous if attempted, is feasible, is
justifiable, and whether the department has the necessary resources
available.
(d) A prosecutor may file the application requested under
Subsection (b) only after a written positive finding by the
director on all of the requirements provided by Subsection (c).
(Code Crim. Proc., Art. 18.20, Sec. 6.)
Art. 18A.053. JURISDICTION. Except as provided by Article
18A.054, a judge of competent jurisdiction may act on an
application for an interception order if any of the following is
located in the administrative judicial region with respect to which
the judge is appointed:
(1) the site of:
(A) the proposed interception; or
(B) the interception device to be installed or
monitored;
(2) the communication device to be intercepted;
(3) the billing, residential, or business address of
the subscriber to the electronic communications service to be
intercepted;
(4) the headquarters of the law enforcement agency
that makes the request for or will execute the interception order;
or
(5) the headquarters of the service provider. (Code
Crim. Proc., Art. 18.20, Sec. 3(b).)
Art. 18A.054. ALTERNATE JURISDICTION. (a) An application
for an interception order may be made to the judge of competent
jurisdiction in an administrative judicial region adjacent to a
region described by Article 18A.053 if:
(1) the judge of competent jurisdiction for the
administrative judicial region described by Article 18A.053 is
absent or unable to serve; or
(2) exigent circumstances exist.
(b) Exigent circumstances under Subsection (a)(2) do not
include a denial of a previous application on the same facts and
circumstances. (Code Crim. Proc., Art. 18.20, Secs. 3(b) (part),
(c) (part).)
Art. 18A.055. APPLICATION FOR INTERCEPTION ORDER. (a) A
prosecutor applying for an interception order must make the
application in writing under oath to a judge of competent
jurisdiction.
(b) An application must:
(1) identify the prosecutor making the application and
state the prosecutor's authority to make the application;
(2) identify the officer requesting the application;
(3) include a complete statement of the facts and
circumstances relied on by the prosecutor to justify the
prosecutor's belief that an order should be issued, including:
(A) details about the particular offense that has
been, is being, or is about to be committed;
(B) except as otherwise provided by this chapter,
a particular description of the nature and location of the
facilities from which or the place where the communication is to be
intercepted;
(C) a particular description of the type of
communication sought to be intercepted; and
(D) the identity of the person, if known,
committing the offense and whose communications are to be
intercepted;
(4) include a complete statement as to whether other
investigative procedures have been attempted and have failed or why
those procedures reasonably appear to be unlikely to succeed or to
be too dangerous if attempted;
(5) include a statement of the period for which the
interception is required to be maintained and, if the nature of the
investigation indicates that the interception order should not
automatically terminate when the described type of communication is
first obtained, a particular description of facts establishing
probable cause to believe that additional communications of the
same type will occur after the described type of communication is
obtained;
(6) include a statement whether a covert entry will be
necessary to properly and safely install wiretapping, electronic
surveillance, or eavesdropping equipment and, if a covert entry is
requested, a statement as to why a covert entry is necessary and
proper under the facts of the particular investigation, including a
complete statement as to whether other investigative techniques
have been attempted and have failed or why those techniques
reasonably appear to be unlikely to succeed or to be too dangerous
if attempted or are not feasible under the circumstances or
exigencies of time;
(7) include a complete statement of the facts
concerning all applications known to the prosecutor that have been
previously made to a judge for an interception order involving any
persons, facilities, or places specified in the application and of
the action taken by the judge on each application;
(8) if the application is for the extension of an
order, include a statement providing the results already obtained
from the interception or a reasonable explanation of the failure to
obtain results; and
(9) if the application is made under Article 18A.054,
fully explain the circumstances justifying application under that
article.
(c) In an ex parte hearing in chambers, the judge may
require additional testimony or documentary evidence to support the
application. The testimony or documentary evidence must be
preserved as part of the application. (Code Crim. Proc., Art.
18.20, Secs. 3(c) (part), 8.)
SUBCHAPTER C. ISSUANCE OF INTERCEPTION ORDER AND RELATED ORDERS
Art. 18A.101. OFFENSES FOR WHICH INTERCEPTION ORDER MAY BE
ISSUED. A judge of competent jurisdiction may issue an
interception order only if the prosecutor applying for the order
shows probable cause to believe that the interception will provide
evidence of the commission of:
(1) a felony under any of the following provisions of
the Health and Safety Code:
(A) Chapter 481, other than felony possession of
marihuana;
(B) Chapter 483; or
(C) Section 485.032;
(2) an offense under any of the following provisions
of the Penal Code:
(A) Section 19.02;
(B) Section 19.03;
(C) Section 20.03;
(D) Section 20.04;
(E) Chapter 20A;
(F) Chapter 34, if the criminal activity giving
rise to the proceeds involves the commission of an offense under
Title 5, Penal Code, or an offense under federal law or the laws of
another state containing elements that are substantially similar to
the elements of an offense under Title 5;
(G) Section 38.11;
(H) Section 43.04;
(I) Section 43.05; or
(J) Section 43.26; or
(3) an attempt, conspiracy, or solicitation to commit
an offense listed in Subdivision (1) or (2). (Code Crim. Proc., Art.
18.20, Sec. 4.)
Art. 18A.102. JUDICIAL DETERMINATIONS REQUIRED FOR
ISSUANCE OF INTERCEPTION ORDER. On receipt of an application under
Subchapter B, the judge may issue an ex parte interception order, as
requested or as modified, if the judge determines from the evidence
submitted by the prosecutor that:
(1) there is probable cause to believe that a person is
committing, has committed, or is about to commit a particular
offense described by Article 18A.101;
(2) there is probable cause to believe that particular
communications concerning that offense will be obtained through the
interception;
(3) normal investigative procedures have been
attempted and have failed or reasonably appear to be unlikely to
succeed or to be too dangerous if attempted;
(4) there is probable cause to believe that the
facilities from which or the place where the wire, oral, or
electronic communications are to be intercepted is being used or is
about to be used in connection with the commission of an offense or
is leased to, listed in the name of, or commonly used by the person;
and
(5) a covert entry is or is not necessary to properly
and safely install the wiretapping, electronic surveillance, or
eavesdropping equipment. (Code Crim. Proc., Art. 18.20, Sec. 9(a).)
Art. 18A.103. CONTENTS OF INTERCEPTION ORDER. (a) An
interception order must specify:
(1) the identity of the person, if known, whose
communications are to be intercepted;
(2) except as otherwise provided by this chapter, the
nature and location of the communications facilities as to which or
the place where authority to intercept is granted;
(3) a particular description of the type of
communication sought to be intercepted and a statement of the
particular offense to which the communication relates;
(4) the identity of the officer making the request and
the identity of the prosecutor;
(5) the period during which the interception is
authorized, including a statement of whether the interception will
automatically terminate when the described communication is first
obtained; and
(6) whether a covert entry or surreptitious entry is
necessary to properly and safely install wiretapping, electronic
surveillance, or eavesdropping equipment.
(b) Each interception order and extension of that order must
provide that the authorization to intercept be executed as soon as
practicable, be conducted in a way that minimizes the interception
of communications not otherwise subject to interception under this
chapter, and terminate on obtaining the authorized objective or
within 30 days, whichever occurs sooner.
(c) For purposes of Subsection (b), if the intercepted
communication is in code or a foreign language and an expert in that
code or language is not reasonably available during the period of
interception, minimization may be accomplished as soon as
practicable after the interception. (Code Crim. Proc., Art. 18.20,
Secs. 9(b), (d) (part).)
Art. 18A.104. LIMITATION ON COVERT ENTRY. (a) An
interception order may not authorize a covert entry for the purpose
of intercepting an oral communication unless:
(1) the judge, in addition to making the
determinations required under Article 18A.102, determines:
(A) that:
(i) the premises into or onto which the
covert entry is authorized or the person whose communications are
to be obtained has been the subject of a pen register previously
authorized in connection with the same investigation;
(ii) the premises into or onto which the
covert entry is authorized or the person whose communications are
to be obtained has been the subject of an interception of wire or
electronic communications previously authorized in connection with
the same investigation; and
(iii) the procedures under Subparagraphs
(i) and (ii) have failed; or
(B) that the procedures under Paragraph (A)
reasonably appear to be unlikely to succeed or to be too dangerous
if attempted or are not feasible under the circumstances or
exigencies of time; and
(2) the interception order, in addition to the matters
required to be specified under Article 18A.103(a), specifies that:
(A) the covert entry is for the purpose of
intercepting oral communications of two or more persons; and
(B) there is probable cause to believe that the
persons described by Paragraph (A) are committing, have committed,
or are about to commit a particular offense described by Article
18A.101.
(b) An interception order may not authorize a covert entry
into a residence solely for the purpose of intercepting a wire or
electronic communication. (Code Crim. Proc., Art. 18.20, Secs.
9(e), (f).)
Art. 18A.105. AUTHORITY TO ISSUE CERTAIN ANCILLARY ORDERS.
An interception order may include an order to:
(1) install or use a pen register, ESN reader, trap and
trace device, or mobile tracking device or similar equipment that
combines the function of a pen register and trap and trace device;
or
(2) disclose a stored communication, information
subject to an administrative subpoena, or information subject to
access under Chapter 18B. (Code Crim. Proc., Art. 18.20, Sec. 9(c)
(part).)
Art. 18A.106. ORDER TO THIRD PARTY TO ASSIST WITH EXECUTION
OF INTERCEPTION ORDER. (a) On request of the prosecutor applying
for an interception order, the judge may issue a separate order
directing a provider of a wire or electronic communications
service, communication common carrier, landlord, custodian, or
other person to provide to the prosecutor all information,
facilities, and technical assistance necessary to accomplish the
interception unobtrusively and with a minimum of interference with
the services that the service provider, carrier, landlord,
custodian, or other person is providing the person whose
communications are to be intercepted.
(b) A provider of a wire or electronic communications
service, communication common carrier, landlord, custodian, or
other person that provides facilities or technical assistance under
an order described by Subsection (a) is entitled to compensation,
at the prevailing rates, by the prosecutor for reasonable expenses
incurred in providing the facilities or assistance. (Code Crim.
Proc., Art. 18.20, Sec. 9(c) (part).)
Art. 18A.107. DURATION OF INTERCEPTION ORDER. An
interception order may not authorize the interception of a
communication for a period that:
(1) is longer than is necessary to achieve the
objective of the authorization; or
(2) exceeds 30 days. (Code Crim. Proc., Art. 18.20,
Sec. 9(d) (part).)
Art. 18A.108. EXTENSION OF INTERCEPTION ORDER. (a) A judge
who issues an interception order may grant extensions of the order.
(b) An extension of an interception order may be granted
only if:
(1) an application for an extension is made in
accordance with Article 18A.055; and
(2) the judge makes the findings required by Article
18A.102.
(c) The period of extension may not:
(1) be longer than the judge considers necessary to
achieve the purposes for which the extension is granted; or
(2) exceed 30 days. (Code Crim. Proc., Art. 18.20,
Sec. 9(d) (part).)
Art. 18A.109. REPORT ON NEED FOR CONTINUED INTERCEPTION.
(a) An interception order may require reports to the judge who
issued the order that show any progress toward achieving the
authorized objective and the need for continued interception.
(b) Reports under this article must be made at any interval
the judge requires. (Code Crim. Proc., Art. 18.20, Sec. 9(g).)
Art. 18A.110. SUBSEQUENT CRIMINAL PROSECUTION RELATED TO
INTERCEPTION ORDER. A judge who issues an interception order may
not hear a criminal prosecution in which:
(1) evidence derived from the interception may be
used; or
(2) the order may be an issue. (Code Crim. Proc., Art.
18.20, Sec. 9(h).)
SUBCHAPTER D. INTERCEPTION ORDER FOR COMMUNICATION BY
SPECIFIED PERSON
Art. 18A.151. REQUIREMENTS REGARDING INTERCEPTION ORDER
FOR COMMUNICATION BY SPECIFIED PERSON. The requirements of
Articles 18A.055(b)(3)(B) and 18A.103(a)(2) relating to the
specification of the facilities from which or the place where a
communication is to be intercepted do not apply if:
(1) in the case of an application for an interception
order that authorizes the interception of an oral communication:
(A) the application contains a complete
statement as to why the specification is not practical and
identifies the person committing or believed to be committing the
offense and whose communications are to be intercepted; and
(B) a judge of competent jurisdiction finds that
the specification is not practical; or
(2) in the case of an application for an interception
order that authorizes the interception of a wire or electronic
communication:
(A) the application identifies the person
committing or believed to be committing the offense and whose
communications are to be intercepted;
(B) a judge of competent jurisdiction finds that
the prosecutor has made an adequate showing of probable cause to
believe that the actions of the person identified in the
application could have the effect of preventing interception from a
specified facility; and
(C) the authority to intercept a wire or
electronic communication under the interception order is limited to
a period in which it is reasonable to presume that the person
identified in the application will be reasonably proximate to the
interception device. (Code Crim. Proc., Art. 18.20, Sec. 9A(a).)
Art. 18A.152. IMPLEMENTATION OF INTERCEPTION ORDER. A
person implementing an interception order that authorizes the
interception of an oral communication and that, as permitted by
this subchapter, does not specify the facility from which or the
place where a communication is to be intercepted may begin
interception only after the person ascertains the place where the
communication is to be intercepted. (Code Crim. Proc., Art. 18.20,
Sec. 9A(b).)
Art. 18A.153. MOTION TO MODIFY OR QUASH INTERCEPTION ORDER.
(a) A provider of a wire or electronic communications service that
receives an interception order that authorizes the interception of
a wire or electronic communication and that, as permitted by this
subchapter, does not specify the facility from which or the place
where a communication is to be intercepted may move the court to
modify or quash the order on the ground that the service provider's
assistance with respect to the interception cannot be performed in
a timely or reasonable manner.
(b) On notice to the state, the court shall decide the
motion expeditiously. (Code Crim. Proc., Art. 18.20, Sec. 9A(c).)
SUBCHAPTER E. EMERGENCY INSTALLATION AND USE OF INTERCEPTION
DEVICE
Art. 18A.201. DEFINITIONS. In this subchapter:
(1) "Immediate life-threatening situation" means a
hostage, barricade, or other emergency situation in which a person
unlawfully and directly:
(A) threatens another with death; or
(B) exposes another to a substantial risk of
serious bodily injury.
(2) "Member of a law enforcement unit specially
trained to respond to and deal with life-threatening situations"
means a peace officer who, as evidenced by the submission of
appropriate documentation to the Texas Commission on Law
Enforcement:
(A) receives each year a minimum of 40 hours of
training in hostage and barricade suspect situations; or
(B) has received a minimum of 24 hours of
training on kidnapping investigations and is:
(i) the sheriff of a county with a
population of 3.3 million or more or the sheriff's designee; or
(ii) the police chief of a police
department in a municipality with a population of 500,000 or more or
the chief's designee. (Code Crim. Proc., Art. 18.20, Secs. 1(22),
(23).)
Art. 18A.202. POSSESSION AND USE OF INTERCEPTION DEVICE IN
EMERGENCY SITUATION. (a) The prosecutor in a county in which an
interception device is to be installed or used shall designate in
writing each peace officer in the county, other than a commissioned
officer of the department, who is:
(1) a member of a law enforcement unit specially
trained to respond to and deal with life-threatening situations;
and
(2) authorized to possess an interception device and
responsible for the installation, operation, and monitoring of the
device in an immediate life-threatening situation.
(b) A peace officer designated under Subsection (a) or
Article 18A.301(c) may possess, install, operate, or monitor an
interception device if the officer:
(1) reasonably believes an immediate life-threatening
situation exists that:
(A) is within the territorial jurisdiction of the
officer or another officer the officer is assisting; and
(B) requires interception of communications
before an interception order can, with due diligence, be obtained
under this subchapter;
(2) reasonably believes there are sufficient grounds
under this subchapter on which to obtain an interception order; and
(3) before beginning the interception, obtains oral or
written consent to the interception from:
(A) a judge of competent jurisdiction;
(B) a district judge for the county in which the
device will be installed or used; or
(C) a judge or justice of a court of appeals or of
a higher court.
(c) If a peace officer installs or uses an interception
device under Subsection (b), the officer shall:
(1) promptly report the installation or use to the
prosecutor in the county in which the device is installed or used;
and
(2) within 48 hours after the installation is complete
or the interception begins, whichever occurs first, obtain a
written interception order from a judge of competent jurisdiction.
(d) A peace officer may certify to a communication common
carrier that the officer is acting lawfully under this subchapter.
(Code Crim. Proc., Art. 18.20, Secs. 8A(a), (b), (d), (g).)
Art. 18A.203. CONSENT FOR EMERGENCY INTERCEPTION. (a) An
official described by Article 18A.202(b)(3) may give oral or
written consent to the interception of communications under this
subchapter to provide evidence of the commission of a felony, or of
a threat, attempt, or conspiracy to commit a felony, in an immediate
life-threatening situation.
(b) Oral or written consent given under this subchapter
expires on the earlier of:
(1) 48 hours after the grant of consent; or
(2) the conclusion of the emergency justifying the
interception. (Code Crim. Proc., Art. 18.20, Sec. 8A(c).)
Art. 18A.204. WRITTEN ORDER AUTHORIZING INTERCEPTION. (a)
A judge of competent jurisdiction under Article 18A.051 or under
Article 18A.202(b) may issue a written interception order under
this subchapter during the 48-hour period prescribed by Article
18A.202(c)(2).
(b) A written interception order under this subchapter
expires on the earlier of:
(1) the 30th day after the date of execution of the
order; or
(2) the conclusion of the emergency that initially
justified the interception.
(c) If an interception order is denied or is not issued
within the 48-hour period, the officer shall terminate use of and
remove the interception device promptly on the earlier of:
(1) the denial;
(2) the end of the emergency that initially justified
the interception; or
(3) the expiration of 48 hours. (Code Crim. Proc.,
Art. 18.20, Sec. 8A(e).)
Art. 18A.205. CERTAIN EVIDENCE NOT ADMISSIBLE. The state
may not use as evidence in a criminal proceeding information gained
through the use of an interception device installed under this
subchapter if authorization for the device is not sought or is
sought but not obtained. (Code Crim. Proc., Art. 18.20,
Secs. 8A(b) (part), (f).)
SUBCHAPTER F. DETECTION OF CELLULAR TELEPHONE OR OTHER WIRELESS
COMMUNICATIONS DEVICE IN CORRECTIONAL OR DETENTION FACILITY
Art. 18A.251. DEFINITION. In this subchapter,
"correctional facility" means:
(1) a place described by Section 1.07(a)(14), Penal
Code; or
(2) a "secure correctional facility" or "secure
detention facility" as defined by Section 51.02, Family Code. (Code
Crim. Proc., Art. 18.20, Sec. 8B(a).)
Art. 18A.252. USE OF INTERCEPTION DEVICE BY INSPECTOR
GENERAL. (a) Notwithstanding any other provision of this chapter
or Chapter 18B, the office of inspector general of the Texas
Department of Criminal Justice may:
(1) without a warrant, use an interception device to
detect the presence or use of a cellular telephone or other wireless
communications device in a correctional facility;
(2) without a warrant, intercept, monitor, detect, or,
as authorized by applicable federal laws and regulations, prevent
the transmission of a communication through a cellular telephone or
other wireless communications device in a correctional facility;
and
(3) use, to the extent authorized by law, any
information obtained under Subdivision (2), including the contents
of an intercepted communication, in a criminal or civil proceeding
before a court or other governmental agency or entity.
(b) When using an interception device under Subsection (a),
the office of inspector general shall minimize the impact of the
device on a communication that is not reasonably related to the
detection of the presence or use of a cellular telephone or other
wireless communications device in a correctional facility. (Code
Crim. Proc., Art. 18.20, Secs. 8B(b), (d).)
Art. 18A.253. REPORTING USE OF INTERCEPTION DEVICE. Not
later than the 30th day after the date on which the office of
inspector general uses an interception device under Article
18A.252(a), the inspector general shall report the use of the
device to:
(1) a prosecutor with jurisdiction in the county in
which the device was used; or
(2) the special prosecution unit established under
Subchapter E, Chapter 41, Government Code, if that unit has
jurisdiction in the county in which the device was used. (Code
Crim. Proc., Art. 18.20, Sec. 8B(c).)
Art. 18A.254. NO EXPECTATION OF PRIVACY. (a) A person
confined in a correctional facility does not have an expectation of
privacy with respect to the possession or use of a cellular
telephone or other wireless communications device located on the
premises of the facility.
(b) A person confined in a correctional facility, and any
person with whom the confined person communicates through the use
of a cellular telephone or other wireless communications device,
does not have an expectation of privacy with respect to the contents
of a communication transmitted by the telephone or device. (Code
Crim. Proc., Art. 18.20, Sec. 8B(e).)
SUBCHAPTER G. AGENCIES AND PERSONNEL AUTHORIZED TO POSSESS AND USE
INTERCEPTION DEVICES
Art. 18A.301. DEPARTMENT OF PUBLIC SAFETY AUTHORIZED TO
POSSESS AND USE INTERCEPTION DEVICE. (a) Except as otherwise
provided by this subchapter and Subchapters E and F, only the
department is authorized by this chapter to own, possess, install,
operate, or monitor an interception device.
(b) An investigative or law enforcement officer or other
person may assist the department in the operation and monitoring of
an interception of wire, oral, or electronic communications if the
officer or other person:
(1) is designated by the director for that purpose;
and
(2) acts in the presence and under the direction of a
commissioned officer of the department.
(c) The director shall designate in writing the
commissioned officers of the department who are responsible for the
possession, installation, operation, and monitoring of
interception devices for the department. (Code Crim. Proc.,
Art. 18.20, Secs. 5(a), (b).)
Art. 18A.302. TEXAS DEPARTMENT OF CRIMINAL JUSTICE
AUTHORIZED TO POSSESS AND USE INTERCEPTION DEVICE. (a) The Texas
Department of Criminal Justice may own an interception device for a
use or purpose authorized by Section 500.008, Government Code.
(b) The inspector general of the Texas Department of
Criminal Justice, a commissioned officer of that office, or a
person acting in the presence and under the direction of the
commissioned officer may possess, install, operate, or monitor the
interception device as provided by Section 500.008, Government
Code. (Code Crim. Proc., Art. 18.20, Sec. 5(c).)
Art. 18A.303. TEXAS JUVENILE JUSTICE DEPARTMENT AUTHORIZED
TO POSSESS AND USE INTERCEPTION DEVICE. (a) The Texas Juvenile
Justice Department may own an interception device for a use or
purpose authorized by Section 242.103, Human Resources Code.
(b) The inspector general of the Texas Juvenile Justice
Department, a commissioned officer of that office, or a person
acting in the presence and under the direction of the commissioned
officer may possess, install, operate, or monitor the interception
device as provided by Section 242.103, Human Resources Code. (Code
Crim. Proc., Art. 18.20, Sec. 5(d).)
SUBCHAPTER H. DISCLOSURE AND USE OF INTERCEPTED COMMUNICATIONS
Art. 18A.351. DISCLOSURE OR USE OF INTERCEPTED
COMMUNICATIONS. An investigative or law enforcement officer who,
by means authorized by this chapter, obtains knowledge of the
contents of a wire, oral, or electronic communication or evidence
derived from the communication may:
(1) use the contents or evidence to the extent the use
is appropriate to the proper performance of the officer's official
duties; or
(2) disclose the contents or evidence to another
investigative or law enforcement officer, including a law
enforcement officer or agent of the United States or of another
state, to the extent that the disclosure is appropriate to the
proper performance of the official duties of the officer making or
receiving the disclosure. (Code Crim. Proc., Art. 18.20,
Secs. 7(a), (b).)
Art. 18A.352. DISCLOSURE UNDER OATH. A person who
receives, by means authorized by this chapter, information
concerning a wire, oral, or electronic communication or evidence
derived from a communication intercepted in accordance with this
chapter may disclose the contents of that communication or evidence
while giving testimony under oath in any proceeding held under the
authority of the United States, this state, or a political
subdivision of this state. (Code Crim. Proc., Art. 18.20,
Sec. 7(c).)
Art. 18A.353. PRIVILEGED COMMUNICATIONS. (a) An otherwise
privileged wire, oral, or electronic communication intercepted in
accordance with, or in violation of, this chapter does not lose its
privileged character.
(b) Evidence derived from a privileged communication
described by Subsection (a) against a party to that communication
is privileged. (Code Crim. Proc., Art. 18.20, Sec. 7(d).)
Art. 18A.354. DISCLOSURE OR USE OF INCIDENTALLY INTERCEPTED
COMMUNICATIONS. (a) This article applies only to the contents of
and evidence derived from wire, oral, or electronic communications
that:
(1) are intercepted by an investigative or law
enforcement officer while engaged in intercepting wire, oral, or
electronic communications in a manner authorized by this chapter;
and
(2) relate to offenses other than those specified by
the interception order.
(b) The contents of and evidence derived from a
communication described by Subsection (a) may be disclosed or used
as provided by Article 18A.351.
(c) The contents of and evidence derived from a
communication described by Subsection (a) may be used under Article
18A.352 when authorized by a judge of competent jurisdiction if the
judge finds, on subsequent application, that the contents were
otherwise intercepted in accordance with this chapter.
(d) An application under Subsection (c) must be made as soon
as practicable. (Code Crim. Proc., Art. 18.20, Sec. 7(e).)
Art. 18A.355. NOTICE AND DISCLOSURE OF INTERCEPTION
APPLICATION, INTERCEPTION ORDER, AND INTERCEPTED COMMUNICATIONS.
(a) Within a reasonable period but not later than the 90th day
after the date an application for an interception order is denied or
after the date an interception order or the last extension, if any,
expires, the judge who granted or denied the application shall
cause to be served on each person named in the order or application
and any other party to an intercepted communication, if any, an
inventory that must include notice of:
(1) the application or the issuance of the order;
(2) the date of denial of the application, or the date
of the issuance of the order and the authorized interception
period; and
(3) whether during any authorized interception period
wire, oral, or electronic communications were intercepted.
(b) The judge may, on motion, make available for inspection
to a person or the person's counsel any portion of an intercepted
communication, application, or order that the judge determines to
disclose to that person in the interest of justice.
(c) On an ex parte showing of good cause to the judge, the
serving of the inventory required under Subsection (a) may be
postponed.
(d) Evidence derived from an order under this chapter may
not be disclosed in a trial until after the inventory has been
served. (Code Crim. Proc., Art. 18.20, Sec. 13.)
Art. 18A.356. NOTICE OF INTERCEPTION REQUIRED. (a) The
contents of an intercepted wire, oral, or electronic communication
or evidence derived from the communication may not be received in
evidence or otherwise disclosed in a trial, hearing, or other
proceeding in a federal or state court unless each party, not later
than the 10th day before the date of the trial, hearing, or other
proceeding, has been provided with a copy of the interception order
and application under which the interception was authorized.
(b) The judge may waive the 10-day period described by
Subsection (a) on a finding that:
(1) it is not possible to provide the party with the
information 10 days before the trial, hearing, or proceeding; and
(2) the party will not be prejudiced by the delay in
receiving the information. (Code Crim. Proc., Art. 18.20, Sec.
14(a).)
Art. 18A.357. COMMUNICATIONS RECEIVED IN EVIDENCE. (a)
The contents of an intercepted communication and evidence derived
from the communication may be received in evidence in any trial,
hearing, or other proceeding in or before any court, grand jury,
department, officer, agency, regulatory body, legislative
committee, or other authority of the United States, this state, or a
political subdivision of this state unless:
(1) the communication was intercepted in violation of
this chapter, Section 16.02, Penal Code, or federal law; or
(2) the disclosure of the contents of the
communication or evidence derived from the communication would
violate a law described by Subdivision (1).
(b) The contents of an intercepted communication and
evidence derived from the communication may be received in a civil
trial, hearing, or other proceeding only if the civil trial,
hearing, or other proceeding arises out of a violation of a penal
law.
(c) This article does not prohibit the use or admissibility
of the contents of an intercepted communication or evidence derived
from the communication if the communication was intercepted in a
jurisdiction outside this state in compliance with the law of that
jurisdiction. (Code Crim. Proc., Art. 18.20, Sec. 2.)
Art. 18A.358. SUPPRESSION OF CONTENTS OF INTERCEPTED
COMMUNICATIONS. (a) An aggrieved person charged with an offense in
a trial, hearing, or proceeding in or before a court, department,
officer, agency, regulatory body, or other authority of the United
States, this state, or a political subdivision of this state may
move to suppress the contents of an intercepted wire, oral, or
electronic communication or evidence derived from the
communication on the ground that:
(1) the communication was unlawfully intercepted;
(2) the interception order is insufficient on its
face; or
(3) the interception was not made in conformity with
the interception order.
(b) A person identified by a party to an intercepted wire,
oral, or electronic communication during the course of that
communication may move to suppress the contents of the
communication on:
(1) a ground provided under Subsection (a); or
(2) the ground that the harm to the person resulting
from the person's identification in court exceeds the value to the
prosecution of the disclosure of the contents.
(c) The motion to suppress must be made before the trial,
hearing, or proceeding unless:
(1) there was not an opportunity to make the motion; or
(2) the aggrieved person was not aware of the grounds
of the motion.
(d) The hearing on the motion to suppress shall be held in
camera on the written request of the aggrieved person.
(e) If the motion to suppress is granted, the contents of
the intercepted wire, oral, or electronic communication and
evidence derived from the communication shall be treated as having
been obtained in violation of this chapter.
(f) The judge, on the filing of the motion to suppress by the
aggrieved person, shall make available to the aggrieved person or
the person's counsel for inspection any portion of the intercepted
communication or evidence derived from the communication that the
judge determines to make available in the interest of justice.
(g) A judge of this state, on hearing a pretrial motion
regarding conversations intercepted by wire in accordance with this
chapter, or who otherwise becomes informed that there exists on
such an intercepted wire, oral, or electronic communication
identification of a specific individual who is not a suspect or a
party to the subject of interception shall:
(1) give notice and an opportunity to be heard on the
matter of suppression of references to that individual if
identification is sufficient to give notice; or
(2) suppress references to that individual if
identification is:
(A) sufficient to potentially cause
embarrassment or harm that outweighs the probative value, if any,
of the mention of that individual; and
(B) insufficient to require the notice under
Subdivision (1). (Code Crim. Proc., Art. 18.20, Secs. 14(b), (c),
(d), (e).)
SUBCHAPTER I. USE AND DISPOSITION OF APPLICATIONS AND ORDERS
Art. 18A.401. SEALING OF APPLICATION OR ORDER. The judge
shall seal each application made and order issued under this
chapter. (Code Crim. Proc., Art. 18.20, Sec. 11 (part).)
Art. 18A.402. CUSTODY OF APPLICATIONS AND ORDERS. Custody
of applications and orders issued under this chapter shall be
wherever the judge directs. (Code Crim. Proc., Art. 18.20, Sec. 11
(part).)
Art. 18A.403. DISCLOSURE OF APPLICATION OR ORDER. An
application made or order issued under this chapter may be
disclosed only on a showing of good cause before a judge of
competent jurisdiction. (Code Crim. Proc., Art. 18.20, Sec. 11
(part).)
Art. 18A.404. DESTRUCTION OF APPLICATION OR ORDER. An
application made or order issued under this chapter may be
destroyed only on or after the 10th anniversary of the date the
application or order was sealed and only if the judge of competent
jurisdiction for the administrative judicial region in which the
application was made or the order was issued orders the
destruction. (Code Crim. Proc., Art. 18.20, Sec. 11 (part).)
SUBCHAPTER J. CREATION, USE, AND DISPOSITION OF RECORDINGS
Art. 18A.451. CREATION OF RECORDINGS. The contents of a
wire, oral, or electronic communication intercepted by means
authorized by this chapter shall be recorded on tape, wire, or other
comparable device in a way that protects the recording from editing
or other alterations. (Code Crim. Proc., Art. 18.20, Sec. 10(a).)
Art. 18A.452. DUPLICATION OF RECORDINGS. Recordings under
Article 18A.451 may be duplicated for use or disclosure under
Article 18A.351 for investigations. (Code Crim. Proc., Art. 18.20,
Sec. 10(c).)
Art. 18A.453. SEALING AND CUSTODY OF RECORDINGS. (a)
Immediately on the expiration of the period of an interception
order and all extensions, if any, the recordings under Article
18A.451 shall be:
(1) made available to the judge issuing the order; and
(2) sealed under the judge's directions.
(b) Custody of the recordings shall be wherever the judge
orders. (Code Crim. Proc., Art. 18.20, Sec. 10(b) (part).)
Art. 18A.454. DESTRUCTION OF RECORDINGS. A recording under
Article 18A.451 may be destroyed only on or after the 10th
anniversary of the date of expiration of the interception order and
the last extension, if any, and only if the judge of competent
jurisdiction for the administrative judicial region in which the
interception was authorized orders the destruction. (Code Crim.
Proc., Art. 18.20, Sec. 10(b) (part).)
Art. 18A.455. PREREQUISITE FOR USE OR DISCLOSURE OF
RECORDING IN CERTAIN PROCEEDINGS. The presence of the seal
required by Article 18A.453(a) or a satisfactory explanation of the
seal's absence is a prerequisite for the use or disclosure of the
contents of a wire, oral, or electronic communication or evidence
derived from the communication under Article 18A.352. (Code Crim.
Proc., Art. 18.20, Sec. 10(d).)
SUBCHAPTER K. VIOLATION; SANCTIONS
Art. 18A.501. CONTEMPT. A violation of Subchapter I or J
may be punished as contempt of court. (Code Crim. Proc., Art.
18.20, Sec. 12.)
Art. 18A.502. RECOVERY OF CIVIL DAMAGES BY AGGRIEVED
PERSON. A person whose wire, oral, or electronic communication is
intercepted, disclosed, or used in violation of this chapter or
Chapter 16, Penal Code:
(1) has a civil cause of action against any person who
intercepts, discloses, or uses or solicits another person to
intercept, disclose, or use the communication; and
(2) is entitled to recover from the person:
(A) actual damages but not less than liquidated
damages computed at a rate of $100 for each day the violation occurs
or $1,000, whichever is higher;
(B) punitive damages; and
(C) reasonable attorney's fees and other
litigation costs reasonably incurred. (Code Crim. Proc., Art.
18.20, Sec. 16(a).)
Art. 18A.503. ACTION BROUGHT BY FEDERAL OR STATE
GOVERNMENT; INJUNCTION; PENALTIES. (a) A person is subject to suit
by the federal or state government in a court of competent
jurisdiction for appropriate injunctive relief if the person
engages in conduct that:
(1) constitutes an offense under Section 16.05, Penal
Code, but is not for a tortious or illegal purpose or for the
purpose of direct or indirect commercial advantage or private
commercial gain; and
(2) involves a radio communication that is:
(A) transmitted on frequencies allocated under
Subpart D of Part 74 of the rules of the Federal Communications
Commission; and
(B) not scrambled or encrypted.
(b) The attorney general or the county or district attorney
of the county in which the conduct described by Subsection (a) is
occurring may file suit under that subsection on behalf of the
state.
(c) A defendant is liable for a civil penalty of $500 if it
is shown at the trial of the civil suit brought under Subsection (a)
that the defendant has been:
(1) convicted of an offense under Section 16.05, Penal
Code; or
(2) found liable in a civil action brought under
Article 18A.502.
(d) Each violation of an injunction ordered under
Subsection (a) is punishable by a fine of $500. (Code Crim. Proc.,
Art. 18.20, Secs. 16(c), (d), (e), (f).)
Art. 18A.504. GOOD FAITH DEFENSE AVAILABLE. A good faith
reliance on a court order or legislative authorization constitutes
a complete defense to an action brought under Article 18A.502 or
18A.503. (Code Crim. Proc., Art. 18.20, Sec. 16(b).)
Art. 18A.505. NO CAUSE OF ACTION. A computer trespasser or
a user, aggrieved person, subscriber, or customer of a
communication common carrier or provider of an electronic
communications service does not have a cause of action against the
carrier or service provider, the officers, employees, or agents of
the carrier or service provider, or other specified persons for
providing information, facilities, or assistance as required by a
good faith reliance on:
(1) legislative authority; or
(2) a court order, warrant, subpoena, or certification
under this chapter. (Code Crim. Proc., Art. 18.20, Sec. 16(g).)
SUBCHAPTER L. REPORTS
Art. 18A.551. REPORT OF INTERCEPTED COMMUNICATIONS BY
JUDGE. (a) Within 30 days after the date an interception order or
the last extension, if any, expires or after the denial of an
interception order, the issuing or denying judge shall report to
the Administrative Office of the United States Courts:
(1) the fact that an order or extension was applied
for;
(2) the kind of order or extension applied for;
(3) the fact that the order or extension was granted as
applied for, was modified, or was denied;
(4) the period of interceptions authorized by the
order and the number and duration of any extensions of the order;
(5) the offense specified in the order or application
or extension;
(6) the identity of the requesting officer and the
prosecutor; and
(7) the nature of the facilities from which or the
place where communications were to be intercepted.
(b) A judge required to file a report under this article
shall forward a copy of the report to the director. (Code Crim.
Proc., Art. 18.20, Secs. 15(a), (c) (part).)
Art. 18A.552. REPORT OF INTERCEPTED COMMUNICATIONS BY
PROSECUTOR. (a) In January of each year each prosecutor shall
report to the Administrative Office of the United States Courts the
following information for the preceding calendar year:
(1) the information required by Article 18A.551(a)
with respect to each application for an interception order or
extension made;
(2) a general description of the interceptions made
under each order or extension, including:
(A) the approximate nature and frequency of
incriminating communications intercepted;
(B) the approximate nature and frequency of other
communications intercepted;
(C) the approximate number of persons whose
communications were intercepted; and
(D) the approximate nature, amount, and cost of
the personnel and other resources used in the interceptions;
(3) the number of arrests resulting from interceptions
made under each order or extension and the offenses for which the
arrests were made;
(4) the number of trials resulting from interceptions;
(5) the number of motions to suppress made with
respect to interceptions and the number granted or denied;
(6) the number of convictions resulting from
interceptions, the offenses for which the convictions were
obtained, and a general assessment of the importance of the
interceptions; and
(7) the information required by Subdivisions (2)
through (6) with respect to orders or extensions obtained.
(b) A prosecutor required to file a report under this
article shall forward a copy of the report to the director. (Code
Crim. Proc., Art. 18.20, Secs. 15(b), (c) (part).)
Art. 18A.553. REPORT OF INTERCEPTED COMMUNICATIONS BY
DEPARTMENT OF PUBLIC SAFETY. (a) On or before March 1 of each year,
the director shall submit a report of all intercepts conducted
under this chapter and terminated during the preceding calendar
year to:
(1) the governor;
(2) the lieutenant governor;
(3) the speaker of the house of representatives;
(4) the chair of the senate jurisprudence committee;
and
(5) the chair of the house of representatives criminal
jurisprudence committee.
(b) The report must include:
(1) the reports of judges and prosecuting attorneys
forwarded to the director as required by Articles 18A.551(b) and
18A.552(b);
(2) the number of department personnel authorized to
possess, install, or operate an interception device;
(3) the number of department and other law enforcement
personnel who participated or engaged in the seizure of intercepts
under this chapter during the preceding calendar year; and
(4) the total cost to the department of all activities
and procedures relating to the seizure of intercepts during the
preceding calendar year, including costs of equipment, personnel,
and expenses incurred as compensation for use of facilities or
technical assistance provided to the department. (Code Crim.
Proc., Art. 18.20, Sec. 15(c) (part).)
SECTION 1.02. Title 1, Code of Criminal Procedure, is amended by adding Chapter 18B to read as follows:
CHAPTER 18B. INSTALLATION AND USE OF TRACKING EQUIPMENT; ACCESS TO
COMMUNICATIONS
SUBCHAPTER A. GENERAL PROVISIONS
Art. 18B.001. DEFINITIONS
SUBCHAPTER B. APPLICATION FOR ORDER AUTHORIZING INSTALLATION AND
USE OF EQUIPMENT
Art. 18B.051. REQUIREMENTS REGARDING REQUEST FOR AND
FILING OF APPLICATION
Art. 18B.052. JURISDICTION
Art. 18B.053. APPLICATION REQUIREMENTS
SUBCHAPTER C. ORDER AUTHORIZING INSTALLATION AND USE OF EQUIPMENT
Art. 18B.101. ORDER AUTHORIZING INSTALLATION AND USE
OF PEN REGISTER, ESN READER, OR
SIMILAR EQUIPMENT
Art. 18B.102. ORDER AUTHORIZING INSTALLATION AND USE
OF TRAP AND TRACE DEVICE OR SIMILAR
EQUIPMENT
Art. 18B.103. COMPENSATION FOR CARRIER OR SERVICE
PROVIDER
Art. 18B.104. DURATION OF ORDER
Art. 18B.105. SEALING RECORDS OF APPLICATION AND ORDER
SUBCHAPTER D. EMERGENCY INSTALLATION AND USE OF CERTAIN EQUIPMENT
Art. 18B.151. EMERGENCY INSTALLATION AND USE OF PEN
REGISTER OR TRAP AND TRACE DEVICE
Art. 18B.152. ORDER AUTHORIZING EMERGENCY INSTALLATION
AND USE
Art. 18B.153. ADMISSIBILITY OF EVIDENCE OBTAINED
SUBCHAPTER E. MOBILE TRACKING DEVICES
Art. 18B.201. DEFINITION
Art. 18B.202. ORDER AUTHORIZING INSTALLATION AND USE
OF MOBILE TRACKING DEVICE
Art. 18B.203. JURISDICTION
Art. 18B.204. NOTIFICATION OF JUDGE FOLLOWING
ACTIVATION OF MOBILE TRACKING DEVICE
Art. 18B.205. DURATION OF ORDER
Art. 18B.206. REMOVAL OF DEVICE
Art. 18B.207. NONAPPLICABILITY
SUBCHAPTER F. LAW ENFORCEMENT POWERS AND DUTIES
Art. 18B.251. POLICY REQUIRED
Art. 18B.252. PEACE OFFICERS AUTHORIZED TO POSSESS,
INSTALL, OPERATE, OR MONITOR EQUIPMENT
Art. 18B.253. LIMITATION: PEN REGISTERS
Art. 18B.254. APPLICATION OR ORDER NOT REQUIRED FOR
CERTAIN SEARCHES
SUBCHAPTER G. OVERSIGHT
Art. 18B.301. COMPLIANCE AUDIT
Art. 18B.302. REPORT OF EXPENDITURES
SUBCHAPTER H. ACCESS TO STORED COMMUNICATIONS AND OTHER STORED
CUSTOMER DATA
Art. 18B.351. GOVERNMENT ACCESS TO ELECTRONIC CUSTOMER
DATA
Art. 18B.352. COURT ORDER FOR GOVERNMENT ACCESS TO
STORED CUSTOMER DATA
Art. 18B.353. WARRANT ISSUED IN THIS STATE:
APPLICABILITY
Art. 18B.354. WARRANT ISSUED IN THIS STATE:
APPLICATION AND ISSUANCE OF WARRANT
Art. 18B.355. WARRANT ISSUED IN THIS STATE: EXECUTION
OF WARRANT
Art. 18B.356. WARRANT ISSUED IN THIS STATE:
COMPLIANCE WITH WARRANT
Art. 18B.357. WARRANT ISSUED IN THIS STATE:
AUTHENTICATION OF RECORDS BY SERVICE
PROVIDER
Art. 18B.358. WARRANT ISSUED IN ANOTHER STATE
Art. 18B.359. GOVERNMENT ACCESS TO CERTAIN STORED
CUSTOMER DATA WITHOUT LEGAL PROCESS
SUBCHAPTER I. BACKUP PRESERVATION OF ELECTRONIC CUSTOMER DATA
Art. 18B.401. BACKUP PRESERVATION OF ELECTRONIC
CUSTOMER DATA
Art. 18B.402. NOTICE TO SUBSCRIBER OR CUSTOMER
Art. 18B.403. RELEASE OF COPY OF ELECTRONIC CUSTOMER
DATA
Art. 18B.404. DESTRUCTION OF COPY OF ELECTRONIC
CUSTOMER DATA
Art. 18B.405. REQUEST FOR COPY OF ELECTRONIC CUSTOMER
DATA BY AUTHORIZED PEACE OFFICER
Art. 18B.406. PROCEEDINGS TO QUASH SUBPOENA OR VACATE
COURT ORDER
SUBCHAPTER J. PRODUCTION OF CERTAIN BUSINESS RECORDS
Art. 18B.451. SUBPOENA AUTHORITY
Art. 18B.452. REPORT OF ISSUANCE OF SUBPOENA
Art. 18B.453. COMPLIANCE WITH POLICY FOR INSTALLATION
AND USE OF EQUIPMENT
SUBCHAPTER K. SERVICE PROVIDER POWERS AND DUTIES
Art. 18B.501. PRECLUSION OF NOTIFICATION
Art. 18B.502. DISCLOSURE BY SERVICE PROVIDER
PROHIBITED
Art. 18B.503. REIMBURSEMENT OF COSTS
SUBCHAPTER L. REMEDIES
Art. 18B.551. CAUSE OF ACTION
Art. 18B.552. NO CAUSE OF ACTION
Art. 18B.553. EXCLUSIVITY OF REMEDIES
CHAPTER 18B. INSTALLATION AND USE OF TRACKING EQUIPMENT; ACCESS TO
COMMUNICATIONS
SUBCHAPTER A. GENERAL PROVISIONS
Art. 18B.001. DEFINITIONS. In this chapter:
(1) "Authorized peace officer" means:
(A) a sheriff or deputy sheriff;
(B) a constable or deputy constable;
(C) a marshal or police officer of a
municipality;
(D) a ranger or officer commissioned by the
Public Safety Commission or the director of the department;
(E) an investigator of a prosecutor's office;
(F) a law enforcement agent of the Texas
Alcoholic Beverage Commission;
(G) a law enforcement officer commissioned by the
Parks and Wildlife Commission;
(H) an enforcement officer appointed by the
inspector general of the Texas Department of Criminal Justice under
Section 493.019, Government Code;
(I) an investigator commissioned by the attorney
general under Section 402.009, Government Code; or
(J) a member of an arson investigating unit
commissioned by a municipality, a county, or the state.
(2) "Communication common carrier," "electronic
communication," "electronic communications service," "user," and
"wire communication" have the meanings assigned by Article 18A.001.
(3) "Department" means the Department of Public Safety
of the State of Texas.
(4) "Designated law enforcement office or agency"
means:
(A) the sheriff's department of a county with a
population of 3.3 million or more;
(B) a police department in a municipality with a
population of 500,000 or more; or
(C) the office of inspector general of the Texas
Department of Criminal Justice.
(5) "Domestic entity" has the meaning assigned by
Section 1.002, Business Organizations Code.
(6) "Electronic communications system" means:
(A) a wire, radio, electromagnetic,
photo-optical, or photoelectronic facility for the transmission of
wire or electronic communications; and
(B) any computer facility or related electronic
equipment for the electronic storage of wire or electronic
communications.
(7) "Electronic customer data" means data or records
that:
(A) are in the possession, care, custody, or
control of a provider of an electronic communications service or
provider of a remote computing service; and
(B) contain:
(i) information revealing the identity of
customers of the applicable service;
(ii) information about a customer's use of
the applicable service;
(iii) information that identifies the
recipient or destination of a wire or electronic communication sent
to or by a customer;
(iv) the content of a wire or electronic
communication sent to or by a customer; and
(v) any data stored with the applicable
service provider by or on behalf of a customer.
(8) "Electronic storage" means storage of electronic
customer data in a computer, computer network, or computer system,
regardless of whether the data is subject to recall, further
manipulation, deletion, or transmission. The term includes storage
of a wire or electronic communication by an electronic
communications service or a remote computing service.
(9) "ESN reader" means a device that, without
intercepting the contents of a communication, records the
electronic serial number from the data track of a wireless
telephone, cellular telephone, or similar communication device
that transmits its operational status to a base site.
(10) "Pen register" means a device or process that
records or decodes dialing, routing, addressing, or signaling
information transmitted by an instrument or facility from which a
wire or electronic communication is transmitted, if the information
does not include the contents of the communication. The term does
not include a device used by a provider or customer of a wire or
electronic communications service in the ordinary course of the
service provider's or customer's business for purposes of:
(A) billing or recording incident to billing for
communications services; or
(B) cost accounting, security control, or other
ordinary business purposes.
(11) "Prosecutor" means a district attorney, criminal
district attorney, or county attorney performing the duties of a
district attorney.
(12) "Remote computing service" means the provision of
computer storage or processing services to the public by means of an
electronic communications system.
(13) "Trap and trace device" means a device or process
that records an incoming electronic or other impulse that
identifies the originating number or other dialing, routing,
addressing, or signaling information reasonably likely to identify
the source of a wire or electronic communication, if the
information does not include the contents of the communication.
The term does not include a device or telecommunications network
used in providing:
(A) a caller identification service authorized
by the Public Utility Commission of Texas under Subchapter E,
Chapter 55, Utilities Code;
(B) the services referenced by Section
55.102(b), Utilities Code; or
(C) a caller identification service provided by a
commercial mobile radio service provider licensed by the Federal
Communications Commission. (Code Crim. Proc., Art. 18.20, Secs.
1(17), (20); Art. 18.21, Secs. 1(1) (part), (2), (3), (3-a), (3-b),
(3-c), (4), (6), (7), (8), (10).)
SUBCHAPTER B. APPLICATION FOR ORDER AUTHORIZING INSTALLATION AND
USE OF EQUIPMENT
Art. 18B.051. REQUIREMENTS REGARDING REQUEST FOR AND FILING
OF APPLICATION. (a) A prosecutor with jurisdiction in a county
within a judicial district described by Article 18B.052 may file
with a district judge in the judicial district an application for
the installation and use of a pen register, ESN reader, trap and
trace device, or similar equipment that combines the function of a
pen register and a trap and trace device.
(b) A prosecutor may file an application under this
subchapter or under federal law on:
(1) the prosecutor's own motion; or
(2) the request of an authorized peace officer,
regardless of whether the peace officer is commissioned by the
department.
(c) A prosecutor must make an application personally and may
not make the application through an assistant or other person
acting on the prosecutor's behalf if the prosecutor:
(1) files an application on the prosecutor's own
motion; or
(2) files an application for the installation and use
of a pen register, ESN reader, or similar equipment on the request
of an authorized peace officer not commissioned by the department,
other than an authorized peace officer employed by a designated law
enforcement office or agency.
(d) A prosecutor may make an application through an
assistant or other person acting on the prosecutor's behalf if the
prosecutor files an application for the installation and use of:
(1) a pen register, ESN reader, or similar equipment
on the request of:
(A) an authorized peace officer who is
commissioned by the department; or
(B) an authorized peace officer of a designated
law enforcement office or agency; or
(2) a trap and trace device or similar equipment on the
request of an authorized peace officer, regardless of whether the
peace officer is commissioned by the department. (Code Crim.
Proc., Art. 18.21, Secs. 2(a) (part), (b).)
Art. 18B.052. JURISDICTION. An application under this
subchapter must be filed in a judicial district in which is located:
(1) the site of the proposed installation or use of the
device or equipment;
(2) the site of the communication device on which the
device or equipment is proposed to be installed or used;
(3) the billing, residential, or business address of
the subscriber to the electronic communications service on which
the device or equipment is proposed to be installed or used;
(4) the headquarters of:
(A) the office of the prosecutor filing an
application under this subchapter; or
(B) a law enforcement agency that requests the
prosecutor to file an application under this subchapter or that
proposes to execute an order authorizing installation and use of
the device or equipment; or
(5) the headquarters of a service provider ordered to
install the device or equipment. (Code Crim. Proc., Art. 18.21,
Sec. 2(a) (part).)
Art. 18B.053. APPLICATION REQUIREMENTS. An application
under this subchapter must:
(1) be made in writing under oath;
(2) include the name of the subscriber and the
telephone number and location of the communication device on which
the pen register, ESN reader, trap and trace device, or similar
equipment will be used, to the extent that information is known or
is reasonably ascertainable; and
(3) state that the installation and use of the device
or equipment will likely produce information that is material to an
ongoing criminal investigation. (Code Crim. Proc., Art. 18.21,
Sec. 2(c).)
SUBCHAPTER C. ORDER AUTHORIZING INSTALLATION AND USE OF EQUIPMENT
Art. 18B.101. ORDER AUTHORIZING INSTALLATION AND USE OF PEN
REGISTER, ESN READER, OR SIMILAR EQUIPMENT. (a) On presentation of
an application under Subchapter B, a judge may order the
installation and use of a pen register, ESN reader, or similar
equipment by an authorized peace officer commissioned by the
department or an authorized peace officer of a designated law
enforcement office or agency.
(b) On request of the applicant, the judge shall direct in
the order that a communication common carrier or a provider of an
electronic communications service provide all information,
facilities, and technical assistance necessary to facilitate the
installation and use of the device or equipment by the department or
designated law enforcement office or agency unobtrusively and with
a minimum of interference to the services provided by the carrier or
service provider. (Code Crim. Proc., Art. 18.21, Sec. 2(d)
(part).)
Art. 18B.102. ORDER AUTHORIZING INSTALLATION AND USE OF
TRAP AND TRACE DEVICE OR SIMILAR EQUIPMENT. (a) On presentation of
an application under Subchapter B, a judge may order the
installation and use of a trap and trace device or similar equipment
on the appropriate line by a communication common carrier or other
person.
(b) The judge may direct the communication common carrier or
other person, including any landlord or other custodian of
equipment, to provide all information, facilities, and technical
assistance necessary to install or use the device or equipment
unobtrusively and with a minimum of interference to the services
provided by the communication common carrier, landlord, custodian,
or other person.
(c) Unless otherwise ordered by the court, the results of
the device or equipment shall be provided to the applicant, as
designated by the court, at reasonable intervals during regular
business hours, for the duration of the order. (Code Crim. Proc.,
Art. 18.21, Sec. 2(e) (part).)
Art. 18B.103. COMPENSATION FOR CARRIER OR SERVICE PROVIDER.
(a) A communication common carrier or a provider of an electronic
communications service that provides facilities and assistance to
the department or a designated law enforcement office or agency
under Article 18B.101(b) is entitled to compensation at the
prevailing rates for the facilities and assistance.
(b) A communication common carrier that provides facilities
and assistance to a designated law enforcement office or agency
under Article 18B.102(b) is entitled to compensation at the
prevailing rates for the facilities and assistance. (Code Crim.
Proc., Art. 18.21, Secs. 2(d) (part), (e) (part).)
Art. 18B.104. DURATION OF ORDER. (a) An order for the
installation and use of a device or equipment under this subchapter
is valid for a period not to exceed 60 days after the earlier of the
date the device or equipment is installed or the 10th day after the
date the order is entered, unless the prosecutor applies for and
obtains an extension of the order from the court before the order
expires.
(b) Each extension granted under Subsection (a) may not
exceed a period of 60 days, except that the court may extend an
order for a period not to exceed one year with the consent of the
subscriber or customer of the service on which the device or
equipment is used. (Code Crim. Proc., Art. 18.21, Sec. 2(f).)
Art. 18B.105. SEALING RECORDS OF APPLICATION AND ORDER. A
district court shall seal an application and order granted under
this chapter. (Code Crim. Proc., Art. 18.21, Sec. 2(g).)
SUBCHAPTER D. EMERGENCY INSTALLATION AND USE OF CERTAIN EQUIPMENT
Art. 18B.151. EMERGENCY INSTALLATION AND USE OF PEN
REGISTER OR TRAP AND TRACE DEVICE. (a) In this article, "immediate
life-threatening situation" has the meaning assigned by Article
18A.201.
(b) A peace officer authorized to possess, install,
operate, or monitor a device under Subchapter E, Chapter 18A, may
install and use a pen register or trap and trace device if the peace
officer reasonably believes:
(1) an immediate life-threatening situation exists
that:
(A) is within the territorial jurisdiction of the
peace officer or another officer the peace officer is assisting;
and
(B) requires the installation of a pen register
or trap and trace device before an order authorizing the
installation and use can, with due diligence, be obtained under
this chapter; and
(2) there are sufficient grounds under this chapter on
which to obtain an order authorizing the installation and use of a
pen register or trap and trace device. (Code Crim. Proc., Art.
18.21, Secs. 1(1) (part), 3(a).)
Art. 18B.152. ORDER AUTHORIZING EMERGENCY INSTALLATION AND
USE. (a) A peace officer who installs or uses a pen register or
trap and trace device under Article 18B.151 shall:
(1) promptly report the installation or use of the
device to the prosecutor in the county in which the device is
installed or used; and
(2) within 48 hours after the installation of the
device is complete or the use of the device begins, whichever occurs
first, obtain an order under Subchapter C authorizing the
installation and use of the device.
(b) A judge may issue an order authorizing the installation
and use of a device under this subchapter during the 48-hour period
prescribed by Subsection (a)(2). If an order is denied or is not
issued within the 48-hour period, the peace officer shall terminate
use of and remove the pen register or trap and trace device promptly
on the earlier of the denial or the expiration of 48 hours. (Code
Crim. Proc., Art. 18.21, Secs. 3(a) (part), (b), (c).)
Art. 18B.153. ADMISSIBILITY OF EVIDENCE OBTAINED. The
state may not use as evidence in a criminal proceeding any
information gained through the use of a pen register or trap and
trace device installed under this subchapter if an authorized peace
officer:
(1) does not apply for authorization for the pen
register or trap and trace device; or
(2) applies for but does not obtain that
authorization. (Code Crim. Proc., Art. 18.21, Sec. 3(d).)
SUBCHAPTER E. MOBILE TRACKING DEVICES
Art. 18B.201. DEFINITION. In this subchapter, "mobile
tracking device" means an electronic or mechanical device that
permits tracking the movement of a person, vehicle, container,
item, or object. (Code Crim. Proc., Art. 18.21, Sec. 1(5).)
Art. 18B.202. ORDER AUTHORIZING INSTALLATION AND USE OF
MOBILE TRACKING DEVICE. (a) A district judge may issue an order
for the installation and use of a mobile tracking device only on the
application of an authorized peace officer.
(b) An application must be written, signed, and sworn to
before the judge.
(c) The affidavit must:
(1) state the name, department, agency, and address of
the applicant;
(2) identify the vehicle, container, or item to which,
in which, or on which the mobile tracking device is to be attached,
placed, or otherwise installed;
(3) state the name of the owner or possessor of the
vehicle, container, or item identified under Subdivision (2);
(4) state the judicial jurisdictional area in which
the vehicle, container, or item identified under Subdivision (2) is
expected to be found; and
(5) state the facts and circumstances that provide the
applicant with a reasonable suspicion that:
(A) criminal activity has been, is, or will be
committed; and
(B) the installation and use of a mobile tracking
device is likely to produce information that is material to an
ongoing criminal investigation of that criminal activity. (Code
Crim. Proc., Art. 18.21, Secs. 14(a) (part), (c).)
Art. 18B.203. JURISDICTION. (a) A district judge may issue
an order for the installation and use of a mobile tracking device in
the same judicial district as the site of:
(1) the investigation; or
(2) the person, vehicle, container, item, or object
the movement of which will be tracked by the device.
(b) The order may authorize the use of a mobile tracking
device outside the judicial district but within the state, if the
device is installed within the district. (Code Crim. Proc., Art.
18.21, Secs. 14(a), (b).)
Art. 18B.204. NOTIFICATION OF JUDGE FOLLOWING ACTIVATION OF
MOBILE TRACKING DEVICE. Within 72 hours after the time a mobile
tracking device is activated in place on or within a vehicle,
container, or item, the applicant for whom an order was issued under
this subchapter shall notify in writing the judge who issued the
order. (Code Crim. Proc., Art. 18.21, Sec. 14(d).)
Art. 18B.205. DURATION OF ORDER. (a) An order under this
subchapter expires not later than the 90th day after the date that
the mobile tracking device was activated in place on or within the
vehicle, container, or item.
(b) For good cause shown, the judge may grant an extension
for an additional 90-day period. (Code Crim. Proc., Art. 18.21,
Sec. 14(e).)
Art. 18B.206. REMOVAL OF DEVICE. (a) The applicant shall
remove or cause to be removed the mobile tracking device as soon as
is practicable after the authorization period expires.
(b) If removal is not practicable, the device may not be
monitored after the expiration of the order. (Code Crim. Proc.,
Art. 18.21, Sec. 14(f).)
Art. 18B.207. NONAPPLICABILITY. (a) This subchapter does
not apply to a global positioning or similar device installed in or
on an item of property by the owner or with the consent of the owner
of the property.
(b) In an emergency, a private entity may monitor a device
described by Subsection (a). (Code Crim. Proc., Art. 18.21, Sec.
14(g).)
SUBCHAPTER F. LAW ENFORCEMENT POWERS AND DUTIES
Art. 18B.251. POLICY REQUIRED. Each designated law
enforcement office or agency shall:
(1) adopt a written policy governing the application
of this chapter to the office or agency; and
(2) submit the policy to the director of the
department, or the director's designee, for approval. (Code Crim.
Proc., Art. 18.21, Sec. 2(j).)
Art. 18B.252. PEACE OFFICERS AUTHORIZED TO POSSESS,
INSTALL, OPERATE, OR MONITOR EQUIPMENT. (a) A peace officer of a
designated law enforcement office or agency is authorized to
possess, install, operate, or monitor a pen register, ESN reader,
or similar equipment if the peace officer's name is on the list
submitted to the director of the department under Subsection (b).
(b) If the director of the department or the director's
designee approves the policy submitted under Article 18B.251, the
inspector general of the Texas Department of Criminal Justice or
the inspector general's designee, or the sheriff or chief of a
designated law enforcement agency or the sheriff's or chief's
designee, as applicable, shall submit to the director a written
list of all peace officers in the designated law enforcement office
or agency who are authorized to possess, install, operate, or
monitor pen registers, ESN readers, or similar equipment. (Code
Crim. Proc., Art. 18.21, Secs. 2(i), (k).)
Art. 18B.253. LIMITATION: PEN REGISTERS. To prevent
inclusion of the contents of a wire or electronic communication, a
governmental agency authorized to install and use a pen register
under this chapter or other law must use reasonably available
technology to only record and decode electronic or other impulses
used to identify the numbers dialed, routed, addressed, or
otherwise processed or transmitted by the communication. (Code
Crim. Proc., Art. 18.21, Sec. 16.)
Art. 18B.254. APPLICATION OR ORDER NOT REQUIRED FOR CERTAIN
SEARCHES. A peace officer is not required to file an application
under Subchapter B or obtain an order under Subchapter C before the
peace officer makes an otherwise lawful search, with or without a
warrant, to determine the contents of a caller identification
message, pager message, or voice message that is contained within
the memory of an end-user's identification, paging, or answering
device. (Code Crim. Proc., Art. 18.21, Sec. 2(h).)
SUBCHAPTER G. OVERSIGHT
Art. 18B.301. COMPLIANCE AUDIT. (a) The department may
conduct an audit of a designated law enforcement office or agency to
ensure compliance with this chapter.
(b) If the department determines from the audit that the
designated law enforcement office or agency is not in compliance
with the policy adopted by the office or agency under Article
18B.251, the department shall notify the office or agency in
writing that the office or agency, as applicable, is not in
compliance.
(c) If the department determines that the office or agency
still is not in compliance with the policy on the 90th day after the
date the office or agency receives written notice under Subsection
(b), the office or agency loses the authority granted by this
chapter until:
(1) the office or agency adopts a new written policy
governing the application of this chapter to the office or agency;
and
(2) the department approves that policy. (Code Crim.
Proc., Art. 18.21, Sec. 2(l).)
Art. 18B.302. REPORT OF EXPENDITURES. (a) The inspector
general of the Texas Department of Criminal Justice or the sheriff
or chief of a designated law enforcement agency, as applicable,
shall submit to the director of the department a written report of
expenditures made by the designated law enforcement office or
agency to purchase and maintain a pen register, ESN reader, or
similar equipment authorized under this chapter.
(b) The director of the department shall report the
expenditures publicly on an annual basis on the department's
Internet website or by other comparable means. (Code Crim. Proc.,
Art. 18.21, Sec. 2(m).)
SUBCHAPTER H. ACCESS TO STORED COMMUNICATIONS AND OTHER STORED
CUSTOMER DATA
Art. 18B.351. GOVERNMENT ACCESS TO ELECTRONIC CUSTOMER
DATA. (a) An authorized peace officer may require a provider of an
electronic communications service or a provider of a remote
computing service to disclose electronic customer data that is in
electronic storage by obtaining a warrant under Article 18B.354.
(b) An authorized peace officer may require a provider of an
electronic communications service or a provider of a remote
computing service to disclose only electronic customer data that is
information revealing the identity of customers of the applicable
service or information about a customer's use of the applicable
service, without giving the subscriber or customer notice:
(1) by obtaining an administrative subpoena
authorized by statute;
(2) by obtaining a grand jury subpoena;
(3) by obtaining a court order under Article 18B.352;
(4) by obtaining a warrant under Article 18B.354;
(5) by obtaining the consent of the subscriber or
customer to the disclosure of the data; or
(6) as otherwise permitted by applicable federal law.
(Code Crim. Proc., Art. 18.21, Secs. 4(a), (b).)
Art. 18B.352. COURT ORDER FOR GOVERNMENT ACCESS TO STORED
CUSTOMER DATA. (a) A court shall issue an order authorizing
disclosure of contents, records, or other information of a wire or
electronic communication held in electronic storage if the court
determines that there is a reasonable belief that the information
sought is relevant to a legitimate law enforcement inquiry.
(b) A court may grant a motion by the service provider to
quash or modify the order issued under Subsection (a) if the court
determines that:
(1) the information or records requested are unusually
voluminous; or
(2) compliance with the order would cause an undue
burden on the provider. (Code Crim. Proc., Art. 18.21, Sec. 5.)
Art. 18B.353. WARRANT ISSUED IN THIS STATE: APPLICABILITY.
Articles 18B.354-18B.357 apply to a warrant required under Article
18B.351 to obtain electronic customer data, including the contents
of a wire or electronic communication. (Code Crim. Proc.,
Art. 18.21, Sec. 5A(a).)
Art. 18B.354. WARRANT ISSUED IN THIS STATE: APPLICATION AND
ISSUANCE OF WARRANT. (a) On the filing of an application by an
authorized peace officer, a district judge may issue a search
warrant under this article for electronic customer data held in
electronic storage, including the contents of and records and other
information related to a wire or electronic communication held in
electronic storage, by a provider of an electronic communications
service or a provider of a remote computing service described by
Article 18B.355(b), regardless of whether the customer data is held
at a location in this state or another state. An application made
under this subsection must demonstrate probable cause for the
issuance of the warrant and must be supported by the oath of the
authorized peace officer.
(b) A search warrant may not be issued under this article
unless the sworn affidavit required by Article 18.01(b) provides
sufficient and substantial facts to establish probable cause that:
(1) a specific offense has been committed; and
(2) the electronic customer data sought:
(A) constitutes evidence of that offense or
evidence that a particular person committed that offense; and
(B) is held in electronic storage by the service
provider on which the warrant is served under Article 18B.355(c).
(c) Only the electronic customer data described in the sworn
affidavit required by Article 18.01(b) may be seized under the
warrant.
(d) A warrant issued under this article shall run in the
name of "The State of Texas."
(e) Article 18.011 applies to an affidavit presented under
Article 18.01(b) for the issuance of a warrant under this article,
and the affidavit may be sealed in the manner provided by that
article. (Code Crim. Proc., Art. 18.21, Secs. 5A(b), (c), (d),
(e), (f).)
Art. 18B.355. WARRANT ISSUED IN THIS STATE: EXECUTION OF
WARRANT. (a) Not later than the 11th day after the date of
issuance, an authorized peace officer shall execute a warrant
issued under Article 18B.354, except that the peace officer shall
execute the warrant within a shorter period if the district judge
directs a shorter period in the warrant. For purposes of this
subsection, a warrant is executed when the warrant is served in the
manner described by Subsection (c).
(b) A warrant issued under Article 18B.354 may be served
only on a provider of an electronic communications service or a
provider of a remote computing service that is a domestic entity or
a company or entity otherwise doing business in this state under a
contract or a terms of service agreement with a resident of this
state, if any part of that contract or agreement is to be performed
in this state.
(c) A search warrant issued under Article 18B.354 is served
when an authorized peace officer delivers the warrant by hand, by
facsimile transmission, or, in a manner allowing proof of delivery,
by means of the United States mail or a private delivery service to:
(1) a person specified by Section 5.255, Business
Organizations Code;
(2) the secretary of state in the case of a company or
entity to which Section 5.251, Business Organizations Code,
applies; or
(3) any other person or entity designated to receive
the service of process.
(d) The district judge shall hear and decide any motion to
quash the warrant not later than the fifth business day after the
date the service provider files the motion. The judge may allow the
service provider to appear at the hearing by teleconference. (Code
Crim. Proc., Art. 18.21, Secs. 5A(b) (part), (g), (h) (part), (i),
(m).)
Art. 18B.356. WARRANT ISSUED IN THIS STATE: COMPLIANCE
WITH WARRANT. (a) A district judge shall indicate in a warrant
issued under Article 18A.354 that the deadline for compliance by
the provider of an electronic communications service or the
provider of a remote computing service is the 15th business day
after the date the warrant is served if the warrant is to be served
on a domestic entity or a company or entity otherwise doing business
in this state, except that the deadline for compliance with a
warrant served in accordance with Section 5.251, Business
Organizations Code, may be extended to a date that is not later than
the 30th day after the date the warrant is served.
(b) The judge may indicate in the warrant that the deadline
for compliance is earlier than the 15th business day after the date
the warrant is served if the authorized peace officer who applies
for the warrant makes a showing and the judge finds that failure to
comply with the warrant by the earlier deadline would cause serious
jeopardy to an investigation, cause undue delay of a trial, or
create a material risk of:
(1) danger to the life or physical safety of any
person;
(2) flight from prosecution;
(3) the tampering with or destruction of evidence; or
(4) intimidation of potential witnesses.
(c) The service provider shall produce all electronic
customer data, contents of communications, and other information
sought, regardless of where the information is held and within the
period allowed for compliance with the warrant, as provided by
Subsection (a) or (b).
(d) A court may find any designated officer, designated
director, or designated owner of a company or entity in contempt of
court if the person by act or omission is responsible for the
failure of the company or entity to comply with the warrant within
the period allowed for compliance.
(e) The failure of a company or entity to timely deliver the
information sought in the warrant does not affect the admissibility
of that evidence in a criminal proceeding.
(f) On a service provider's compliance with a warrant issued
under Article 18B.354, an authorized peace officer shall file a
return of the warrant and a copy of the inventory of the seized
property as required under Article 18.10.
(g) A provider of an electronic communications service or a
provider of a remote computing service responding to a warrant
issued under Article 18B.354 may request an extension of the period
for compliance with the warrant if extenuating circumstances exist
to justify the extension. The district judge shall grant a request
for an extension based on those circumstances if:
(1) the authorized peace officer who applied for the
warrant or another appropriate authorized peace officer agrees to
the extension; or
(2) the district judge finds that the need for the
extension outweighs the likelihood that the extension will cause an
adverse circumstance described by Subsection (b). (Code Crim.
Proc., Art. 18.21, Secs. 5A(b) (part), (h) (part), (j), (l), (n).)
Art. 18B.357. WARRANT ISSUED IN THIS STATE: AUTHENTICATION
OF RECORDS BY SERVICE PROVIDER. If an authorized peace officer
serving a warrant under Article 18B.355 also delivers an affidavit
form to the provider of an electronic communications service or the
provider of a remote computing service responding to the warrant,
and the peace officer also notifies the service provider in writing
that an executed affidavit is required, the service provider shall
verify the authenticity of the customer data, contents of
communications, and other information produced in compliance with
the warrant by including with the information an affidavit form
that:
(1) is completed and sworn to by a person who is a
custodian of the information or a person otherwise qualified to
attest to the authenticity of the information; and
(2) states that the information was stored in the
course of regularly conducted business of the service provider and
specifies whether the regular practice of the service provider is
to store that information. (Code Crim. Proc., Art. 18.21, Sec.
5A(k).)
Art. 18B.358. WARRANT ISSUED IN ANOTHER STATE. Any
domestic entity that provides electronic communications services
or remote computing services to the public shall comply with a
warrant issued in another state and seeking information described
by Article 18B.354(a), if the warrant is served on the entity in a
manner equivalent to the service of process requirements provided
by Article 18B.355(b). (Code Crim. Proc., Art. 18.21, Sec. 5B.)
Art. 18B.359. GOVERNMENT ACCESS TO CERTAIN STORED CUSTOMER
DATA WITHOUT LEGAL PROCESS. (a) A provider of a telephonic
communications service shall disclose to an authorized peace
officer, without legal process, subscriber listing information,
including name, address, and telephone number or similar access
code:
(1) that the service provider provides to others in
the course of providing publicly available directory or similar
assistance; or
(2) that is solely for use in the dispatch of emergency
vehicles and personnel responding to a distress call directed to an
emergency dispatch system or when the information is reasonably
necessary to aid in the dispatching of emergency vehicles and
personnel for the immediate prevention of death, personal injury,
or destruction of property.
(b) A provider of a telephonic communications service shall
provide to an authorized peace officer the name of the subscriber of
record whose published telephone number is provided to the service
provider by an authorized peace officer. (Code Crim. Proc., Art.
18.21, Secs. 4(c), (d).)
SUBCHAPTER I. BACKUP PRESERVATION OF ELECTRONIC CUSTOMER DATA
Art. 18B.401. BACKUP PRESERVATION OF ELECTRONIC CUSTOMER
DATA. (a) A subpoena or court order under Article 18B.351(b) for
disclosure of certain electronic customer data held in electronic
storage by a provider of an electronic communications service or a
provider of a remote computing service may, for the purpose of
preserving the customer data sought by the subpoena or court order,
require that service provider to create a copy of that data.
(b) The service provider shall create the copy within a
reasonable period as determined by the court issuing the subpoena
or court order.
(c) On creating a copy under this article, the service
provider shall immediately notify the authorized peace officer who
presented the subpoena or court order requesting the copy.
(d) The service provider may not inform the subscriber or
customer whose data is being sought that the subpoena or court order
has been issued. (Code Crim. Proc., Art. 18.21, Secs. 6(a), (b).)
Art. 18B.402. NOTICE TO SUBSCRIBER OR CUSTOMER. Not later
than the third day after the date of the receipt of the notice under
Article 18B.401(c) from the applicable service provider, the
authorized peace officer who presented the subpoena or court order
requesting the copy shall provide notice of the creation of the copy
to the subscriber or customer whose electronic customer data is the
subject of the subpoena or court order. (Code Crim. Proc., Art.
18.21, Secs. 6(b) (part), (c).)
Art. 18B.403. RELEASE OF COPY OF ELECTRONIC CUSTOMER DATA.
The provider of an electronic communications service or the
provider of a remote computing service shall release a copy created
under this subchapter to the requesting authorized peace officer
not earlier than the 14th day after the date of the peace officer's
notice to the subscriber or customer if the service provider has
not:
(1) initiated proceedings to challenge the request of
the peace officer for the copy; or
(2) received notice from the subscriber or customer
that the subscriber or customer has initiated proceedings to
challenge the request. (Code Crim. Proc., Art. 18.21, Sec. 6(d).)
Art. 18B.404. DESTRUCTION OF COPY OF ELECTRONIC CUSTOMER
DATA. The provider of an electronic communications service or the
provider of a remote computing service may not destroy or permit the
destruction of a copy created under this subchapter until the later
of:
(1) the delivery of electronic customer data to the
applicable law enforcement agency; or
(2) the resolution of any court proceedings, including
appeals of any proceedings, relating to the subpoena or court order
requesting the creation of the copy. (Code Crim. Proc., Art. 18.21,
Sec. 6(e).)
Art. 18B.405. REQUEST FOR COPY OF ELECTRONIC CUSTOMER DATA
BY AUTHORIZED PEACE OFFICER. (a) An authorized peace officer who
reasonably believes that notice to a subscriber or customer
regarding a subpoena or court order would result in the destruction
of or tampering with the electronic customer data sought may
request the creation of a copy of the data.
(b) The peace officer's belief is not subject to challenge
by the subscriber or customer or by a provider of an electronic
communications service or a provider of a remote computing service.
(Code Crim. Proc., Art. 18.21, Sec. 6(f).)
Art. 18B.406. PROCEEDINGS TO QUASH SUBPOENA OR VACATE COURT
ORDER. (a) Not later than the 14th day after the date a subscriber
or customer receives notice under Article 18B.402, the subscriber
or customer may file a written motion to quash the subpoena or
vacate the court order in the court that issued the subpoena or
court order. The motion must contain an affidavit or other sworn
statement stating:
(1) that the applicant is a subscriber or customer of
the provider of an electronic communications service or the
provider of a remote computing service from which the electronic
customer data held in electronic storage for the subscriber or
customer has been sought; and
(2) the applicant's reasons for believing that the
customer data sought is not relevant to a legitimate law
enforcement inquiry or that there has not been substantial
compliance with the provisions of this chapter in some other
respect.
(b) The subscriber or customer shall give written notice to
the applicable service provider of the challenge to the subpoena or
court order. The authorized peace officer requesting the subpoena
or court order must be served a copy of the filed papers by personal
delivery or by registered or certified mail.
(c) The court shall order the authorized peace officer to
file a sworn response to the motion filed by the subscriber or
customer if the court determines that the subscriber or customer
has complied with the requirements of Subsections (a) and (b). On
request of the peace officer, the court may permit the response to
be filed in camera. The court may conduct any additional
proceedings the court considers appropriate if the court is unable
to make a determination on the motion on the basis of the parties'
initial allegations and response.
(d) The court shall rule on the motion as soon as
practicable after the filing of the peace officer's response. The
court shall deny the motion if the court finds that the applicant is
not the subscriber or customer whose data is the subject of the
subpoena or court order or that there is reason to believe that the
peace officer's inquiry is legitimate and that the data sought is
relevant to that inquiry. The court shall quash the subpoena or
vacate the court order if the court finds that the applicant is the
subscriber or customer whose data is the subject of the subpoena or
court order and that there is not a reason to believe that the data
is relevant to a legitimate law enforcement inquiry or that there
has not been substantial compliance with the provisions of this
chapter.
(e) A court order denying a motion or application under this
article is not a final order, and an interlocutory appeal may not be
taken from the denial. (Code Crim. Proc., Art. 18.21, Secs. 6(g),
(h).)
SUBCHAPTER J. PRODUCTION OF CERTAIN BUSINESS RECORDS
Art. 18B.451. SUBPOENA AUTHORITY. The director of the
department or the director's designee, the inspector general of the
Texas Department of Criminal Justice or the inspector general's
designee, or the sheriff or chief of a designated law enforcement
agency or the sheriff's or chief's designee may issue an
administrative subpoena to a communication common carrier or a
provider of an electronic communications service to compel the
production of any carrier's or service provider's business records
that:
(1) disclose information about:
(A) the carrier's or service provider's
customers; or
(B) users of the services offered by the carrier
or service provider; and
(2) are material to a criminal investigation. (Code
Crim. Proc., Art. 18.21, Sec. 15(a).)
Art. 18B.452. REPORT OF ISSUANCE OF SUBPOENA. Not later
than the 30th day after the date on which an administrative subpoena
is issued under Article 18B.451, the inspector general of the Texas
Department of Criminal Justice or the sheriff or chief of a
designated law enforcement agency, as applicable, shall report to
the department the issuance of the subpoena. (Code Crim. Proc.,
Art. 18.21, Sec. 15(b).)
Art. 18B.453. COMPLIANCE WITH POLICY FOR INSTALLATION AND
USE OF EQUIPMENT. (a) If, based on a report received under Article
18B.452, the department determines that a designated law
enforcement office or agency is not in compliance with the policy
adopted by the office or agency under Article 18B.251, the
department shall notify the office or agency in writing that the
office or agency, as applicable, is not in compliance.
(b) If the department determines that the office or agency
still is not in compliance with the policy on the 90th day after the
date the office or agency receives written notice under this
article, the office or agency loses the authority granted by this
chapter until:
(1) the office or agency adopts a new written policy
governing the application of this chapter to the office or agency;
and
(2) the department approves that policy. (Code Crim.
Proc., Art. 18.21, Sec. 15(c).)
SUBCHAPTER K. SERVICE PROVIDER POWERS AND DUTIES
Art. 18B.501. PRECLUSION OF NOTIFICATION. (a) An
authorized peace officer seeking electronic customer data under
Article 18B.351 may apply to the court for an order commanding the
service provider to whom a warrant, subpoena, or court order is
directed not to disclose to any person the existence of the warrant,
subpoena, or court order. The order is effective for the period the
court considers appropriate.
(b) The court shall enter the order if the court determines
that there is reason to believe that notification of the existence
of the warrant, subpoena, or court order will have an adverse
result.
(c) In this article, an "adverse result" means:
(1) endangering the life or physical safety of an
individual;
(2) flight from prosecution;
(3) destruction of or tampering with evidence;
(4) intimidation of a potential witness; or
(5) otherwise seriously jeopardizing an investigation
or unduly delaying a trial. (Code Crim. Proc., Art. 18.21, Sec. 8.)
Art. 18B.502. DISCLOSURE BY SERVICE PROVIDER PROHIBITED.
(a) Except as provided by Subsection (c), a provider of an
electronic communications service may not knowingly divulge the
contents of a communication that is in electronic storage.
(b) Except as provided by Subsection (c), a provider of a
remote computing service may not knowingly divulge the contents of
a communication that:
(1) is in electronic storage on behalf of a subscriber
or customer of the service provider;
(2) is received by means of electronic transmission
from the subscriber or customer or created by means of computer
processing of communications received by means of electronic
transmission from the subscriber or customer; and
(3) is solely for the purpose of providing storage or
computer processing services to the subscriber or customer, if the
service provider is not authorized to obtain access to the contents
of that communication for purposes of providing any service other
than storage or computer processing.
(c) A provider of an electronic communications service or a
provider of a remote computing service may disclose the contents of
an electronically stored communication:
(1) to an intended recipient of the communication or
the intended recipient's agent;
(2) to the addressee or the addressee's agent;
(3) with the consent of the originator, to the
addressee or the intended recipient of the communication, or the
subscriber of a remote computing service;
(4) to a person whose facilities are used to transmit
the communication to its destination or the person's employee or
authorized representative;
(5) as may be necessary to provide the service or to
protect the property or rights of the service provider;
(6) to a law enforcement agency if the contents were
obtained inadvertently by the service provider and the contents
appear to pertain to the commission of an offense; or
(7) as authorized under federal or other state law.
(Code Crim. Proc., Art. 18.21, Sec. 11.)
Art. 18B.503. REIMBURSEMENT OF COSTS. (a) Except as
provided by Subsection (c), an authorized peace officer who obtains
electronic customer data under Article 18B.351 or 18B.359 or other
information under this chapter shall reimburse the person
assembling or providing the data or information for all costs that
are reasonably necessary and that have been directly incurred in
searching for, assembling, reproducing, or otherwise providing the
data or information, including costs arising from necessary
disruption of normal operations of a provider of an electronic
communications service or a provider of a remote computing service
in which the electronic customer data may be held in electronic
storage or in which the other information may be stored.
(b) The authorized peace officer and the person providing
the electronic customer data or other information may agree on the
amount of reimbursement. If there is not an agreement, the court
that issued the order for production of the data or information
shall determine the amount. If a court order was not issued for
production of the data or information, the court before which any
criminal prosecution relating to the data or information would be
brought shall determine the amount.
(c) Subsection (a) does not apply to records or other
information that is maintained by a communication common carrier
and that relates to telephone toll records or telephone listings
obtained under Article 18B.359(a), unless the court determines
that:
(1) the amount of information required was unusually
voluminous; or
(2) an undue burden was imposed on the service
provider. (Code Crim. Proc., Art. 18.21, Sec. 9.)
SUBCHAPTER L. REMEDIES
Art. 18B.551. CAUSE OF ACTION. (a) Except as provided by
Article 18B.552, a provider of an electronic communications service
or a provider of a remote computing service, or a subscriber or
customer of that service provider, that is aggrieved by a violation
of this chapter has a civil cause of action if the conduct
constituting the violation was committed knowingly or
intentionally and is entitled to:
(1) injunctive relief;
(2) reasonable attorney's fees and other litigation
costs reasonably incurred; and
(3) the amount of the actual damages suffered and any
profits made by the violator as a result of the violation or $1,000,
whichever is more.
(b) The reliance in good faith on a court order, warrant,
subpoena, or legislative authorization is a complete defense to any
civil action brought under this chapter.
(c) A civil action under this article may be presented not
later than the second anniversary of the date the claimant first
discovered or had reasonable opportunity to discover the violation.
(Code Crim. Proc., Art. 18.21, Sec. 12.)
Art. 18B.552. NO CAUSE OF ACTION. A subscriber or customer
of a provider of an electronic communications service or a provider
of a remote computing service does not have a cause of action
against a service provider or the service provider's officers,
employees, or agents or against other specified persons for
providing information, facilities, or assistance as required by a
court order, warrant, subpoena, or certification under this
chapter. (Code Crim. Proc., Art. 18.21, Sec. 10.)
Art. 18B.553. EXCLUSIVITY OF REMEDIES. The remedies and
sanctions under this chapter are the exclusive judicial remedies
and sanctions for a violation of this chapter, other than a
violation that infringes on a right of a party that is guaranteed by
a state or federal constitution. (Code Crim. Proc., Art. 18.21,
Sec. 13.)
SECTION 1.03. Title 1, Code of Criminal Procedure, is amended by adding Chapter 66 to read as follows:
CHAPTER 66. CRIMINAL HISTORY RECORD SYSTEM
SUBCHAPTER A. GENERAL PROVISIONS
Art. 66.001. DEFINITIONS
SUBCHAPTER B. CRIMINAL JUSTICE INFORMATION SYSTEM
Art. 66.051. PURPOSE AND FUNCTIONS
Art. 66.052. IMPLEMENTATION AND OPERATION OF CRIMINAL
JUSTICE INFORMATION SYSTEM
Art. 66.053. INFORMATION COLLECTED
Art. 66.054. FINGERPRINT AND ARREST INFORMATION IN
CRIMINAL JUSTICE INFORMATION SYSTEM
SUBCHAPTER C. COMPUTERIZED CRIMINAL HISTORY SYSTEM
Art. 66.101. COMPUTERIZED CRIMINAL HISTORY SYSTEM
DATABASE
Art. 66.102. INFORMATION CONTAINED IN COMPUTERIZED
CRIMINAL HISTORY SYSTEM
Art. 66.103. DUTIES OF TEXAS DEPARTMENT OF CRIMINAL
JUSTICE REGARDING CRIMINAL JUSTICE
INFORMATION SYSTEM
Art. 66.104. DUTIES OF LICENSING AGENCIES TO PROVIDE
INFORMATION REGARDING LICENSE HOLDERS
Art. 66.105. INFORMATION RELATED TO MISUSED IDENTITY
Art. 66.106. INFORMATION RELATED TO NON-FINGERPRINT
SUPPORTED ACTIONS
SUBCHAPTER D. CORRECTIONS TRACKING SYSTEM
Art. 66.151. CORRECTIONS TRACKING SYSTEM DATABASE
Art. 66.152. INFORMATION CONTAINED IN CORRECTIONS
TRACKING SYSTEM
SUBCHAPTER E. ACCESS TO INFORMATION IN CRIMINAL JUSTICE
INFORMATION SYSTEM
Art. 66.201. ACCESS TO DATABASES BY CRIMINAL JUSTICE
AGENCIES AND OTHER ENTITIES
Art. 66.202. REQUEST FOR DATA FILE FROM DATABASES
Art. 66.203. PUBLIC DISCLOSURE OF DATA PROHIBITED
SUBCHAPTER F. DATA COLLECTION AND SUBMISSION
Art. 66.251. UNIFORM INCIDENT FINGERPRINT CARD
Art. 66.252. REPORTING OF INFORMATION BY LOCAL
ENTITIES
Art. 66.253. COMPATIBILITY OF DATA
Art. 66.254. ELECTRONIC REPORTING OF INFORMATION
Art. 66.255. INFORMATION ON SUBSEQUENT ARRESTS
SUBCHAPTER G. DUTIES OF CRIMINAL JUSTICE AGENCIES AND CERTAIN
COURT CLERKS
Art. 66.301. DUTIES OF CRIMINAL JUSTICE AGENCIES
Art. 66.302. PUBLIC DISCLOSURE NOT AUTHORIZED
Art. 66.303. PROHIBITED ACTS
Art. 66.304. APPLICABILITY TO DISTRICT COURT AND
COUNTY COURT CLERKS
SUBCHAPTER H. OVERSIGHT AND REPORTING
Art. 66.351. BIENNIAL PLANS
Art. 66.352. EXAMINATION OF RECORDS AND OPERATIONS
Art. 66.353. MONITORING AND REPORTING DUTIES OF
DEPARTMENT OF PUBLIC SAFETY
Art. 66.354. LOCAL DATA ADVISORY BOARDS
SUBCHAPTER I. GRANTS
Art. 66.401. GRANTS FOR CRIMINAL JUSTICE PROGRAMS
Art. 66.402. CERTIFICATION REQUIRED
CHAPTER 66. CRIMINAL HISTORY RECORD SYSTEM
SUBCHAPTER A. GENERAL PROVISIONS
Art. 66.001. DEFINITIONS. In this chapter:
(1) "Administration of criminal justice" means the
detection, apprehension, detention, pretrial release, post-trial
release, prosecution, adjudication, correctional supervision, or
rehabilitation of an offender. The term includes criminal
identification activities and the collection, storage, and
dissemination of criminal history record information.
(2) "Computerized criminal history system" means the
database containing arrest, disposition, and other criminal
history maintained by the Department of Public Safety.
(3) "Corrections tracking system" means the database
maintained by the Texas Department of Criminal Justice on all
offenders under the department's supervision.
(4) "Council" means the Criminal Justice Policy
Council.
(5) "Criminal justice agency" means a federal or state
agency that is engaged in the administration of criminal justice
under a statute or executive order and allocates a substantial part
of the agency's annual budget to the administration of criminal
justice.
(6) "Criminal justice information system" means the
computerized criminal history system and the corrections tracking
system.
(7) "Disposition" means an action that results in the
termination, transfer to another jurisdiction, or indeterminate
suspension of the prosecution of a criminal charge.
(8) "Electronic means" means the transmission of data
between word processors, data processors, or similar automated
information equipment over dedicated cables, commercial lines, or
other similar methods of transmission.
(9) "Incident number" means the unique number assigned
to a specific person during a specific arrest.
(10) "Offender" means any person who is assigned an
incident number.
(11) "Offense code" means the numeric code for each
offense category.
(12) "Release" means the termination of jurisdiction
over an individual by the criminal justice system.
(13) "State identification number" means the unique
number assigned by the Department of Public Safety to each person
whose name appears in the criminal justice information system.
(Code Crim. Proc., Arts. 60.01(1), (3), (4), (5), (6), (7), (8),
(9), (10), (11), (13), (14), (16).)
SUBCHAPTER B. CRIMINAL JUSTICE INFORMATION SYSTEM
Art. 66.051. PURPOSE AND FUNCTIONS. The criminal justice
information system shall be maintained to supply the state with a
system:
(1) that provides an accurate criminal history record
depository to:
(A) law enforcement officers; and
(B) criminal justice agencies for operational
decision making;
(2) from which accurate criminal justice system
modeling can be conducted; and
(3) that improves:
(A) the quality of data used to conduct impact
analyses of proposed legislative changes in the criminal justice
system; and
(B) the ability of interested parties to analyze
the functioning of the criminal justice system. (Code Crim. Proc.,
Art. 60.02(c).)
Art. 66.052. IMPLEMENTATION AND OPERATION OF CRIMINAL
JUSTICE INFORMATION SYSTEM. (a) The Department of Public Safety
shall designate offense codes and has the sole responsibility for
designating the state identification number for each person whose
name appears in the criminal justice information system.
(b) The Department of Public Safety and the Texas Department
of Criminal Justice shall implement a system to link the
computerized criminal history system and the corrections tracking
system. (Code Crim. Proc., Arts. 60.02(e), (f) (part).)
Art. 66.053. INFORMATION COLLECTED. For each arrest for a
felony or misdemeanor other than a misdemeanor punishable by fine
only, the criminal justice information system must include
information relating to:
(1) offenders;
(2) arrests;
(3) prosecutions;
(4) the disposition of cases by courts;
(5) sentencing; and
(6) the handling of offenders received by a
correctional agency, facility, or other institution. (Code Crim.
Proc., Art. 60.05.)
Art. 66.054. FINGERPRINT AND ARREST INFORMATION IN CRIMINAL
JUSTICE INFORMATION SYSTEM. (a) When a jurisdiction transmits
fingerprints and arrest information by a remote terminal accessing
the statewide automated fingerprint identification system, the
Department of Public Safety shall use that transmission to create:
(1) a permanent record in the criminal justice
information system; or
(2) a temporary arrest record in the criminal justice
information system to be maintained by the department until the
department receives and processes the physical copy of the arrest
information.
(b) The Department of Public Safety shall make available to
a criminal justice agency making a background criminal inquiry any
information contained in a temporary arrest record maintained by
the department, including a statement that a physical copy of the
arrest information was not available at the time the information
was entered in the criminal justice information system. (Code
Crim. Proc., Art. 60.12.)
SUBCHAPTER C. COMPUTERIZED CRIMINAL HISTORY SYSTEM
Art. 66.101. COMPUTERIZED CRIMINAL HISTORY SYSTEM
DATABASE. (a) The Department of Public Safety shall record data
and maintain the computerized criminal history system that serves
as the record creation point for criminal history information
maintained by the state.
(b) The computerized criminal history system must contain
the information required by this chapter.
(c) The Department of Public Safety shall operate the
computerized criminal history system and develop the necessary
interfaces in the system to accommodate inquiries from the
statewide automated fingerprint identification system implemented
by the department. (Code Crim. Proc., Arts. 60.02(b), (d), (g).)
Art. 66.102. INFORMATION CONTAINED IN COMPUTERIZED
CRIMINAL HISTORY SYSTEM. (a) In this article:
(1) "Appeal" means the review of a decision of a lower
court by a superior court other than by collateral attack.
(2) "Rejected case" means:
(A) a charge that, after the arrest of the
offender, the prosecutor declines to include in an information or
present to a grand jury; or
(B) an information or indictment that, after the
arrest of the offender, the prosecutor refuses to prosecute.
(b) Information in the computerized criminal history system
relating to an offender must include the offender's:
(1) name, including other names by which the offender
is known;
(2) date of birth;
(3) physical description, including sex, weight,
height, race, ethnicity, eye color, hair color, scars, marks, and
tattoos; and
(4) state identification number.
(c) Information in the computerized criminal history system
relating to an arrest must include:
(1) the offender's name;
(2) the offender's state identification number;
(3) the arresting law enforcement agency;
(4) the arrest charge, by offense code and incident
number;
(5) whether the arrest charge is a misdemeanor or
felony;
(6) the date of the arrest;
(7) the exact disposition of the case by a law
enforcement agency following the arrest; and
(8) the date of disposition of the case by the law
enforcement agency.
(d) Information in the computerized criminal history system
relating to a prosecution must include:
(1) each charged offense, by offense code and incident
number;
(2) the level of the offense charged or the degree of
the offense charged for each offense in Subdivision (1); and
(3) for a rejected case:
(A) the date of rejection;
(B) the offense code;
(C) the incident number; and
(D) whether the rejection is a result of a
successful pretrial diversion program.
(e) Information in the computerized criminal history system
relating to the disposition of a case other than a rejected case
must include:
(1) the final pleading to each charged offense and the
level of the offense;
(2) a listing of each charged offense disposed of by
the court and:
(A) the date of disposition;
(B) the offense code for the disposed charge and
incident number; and
(C) the type of disposition; and
(3) for a conviction that is appealed, the final court
decision and the final disposition of the offender's case on
appeal.
(f) Information in the computerized criminal history system
relating to sentencing must include for each sentence:
(1) the sentencing date;
(2) the sentence for each offense, by offense code and
incident number;
(3) if the offender was sentenced to confinement:
(A) the agency that receives custody of the
offender;
(B) the length of the sentence for each offense;
and
(C) if multiple sentences were ordered, whether
the sentences were ordered to be served consecutively or
concurrently;
(4) if the offender was sentenced to pay a fine, the
amount of the fine;
(5) if a sentence to pay a fine or to confinement was
ordered but was deferred, probated, suspended, or otherwise not
imposed:
(A) the length of the sentence or the amount of
the fine that was deferred, probated, suspended, or otherwise not
imposed; and
(B) the offender's name, offense code, and
incident number; and
(6) if a sentence other than a fine or confinement was
ordered, a description of the sentence ordered.
(g) The Department of Public Safety shall maintain in the
computerized criminal history system any information the
department maintains in the central database under Article 62.005.
(h) In addition to the information described by this
article, information in the computerized criminal history system
must include the age of the victim of the offense if the offender
was arrested for or charged with an offense under the following
provisions of the Penal Code:
(1) Section 20.04(a)(4) (Aggravated Kidnapping), if
the offender committed the offense with the intent to violate or
abuse the victim sexually;
(2) Section 20A.02 (Trafficking of Persons), if the
offender:
(A) trafficked a person with the intent or
knowledge that the person would engage in sexual conduct, as
defined by Section 43.25, Penal Code; or
(B) benefited from participating in a venture
that involved a trafficked person engaging in sexual conduct, as
defined by Section 43.25, Penal Code;
(3) Section 21.02 (Continuous Sexual Abuse of Young
Child or Children);
(4) Section 21.11 (Indecency with a Child);
(5) Section 22.011 (Sexual Assault) or 22.021
(Aggravated Sexual Assault);
(6) Section 30.02 (Burglary), if the offense is
punishable under Subsection (d) of that section and the offender
committed the offense with the intent to commit an offense
described by Subdivision (1), (4), or (5);
(7) Section 43.05(a)(2) (Compelling Prostitution); or
(8) Section 43.25 (Sexual Performance by a Child).
(Code Crim. Proc., Arts. 60.01(2), (12), 60.051.)
Art. 66.103. DUTIES OF TEXAS DEPARTMENT OF CRIMINAL JUSTICE
REGARDING CRIMINAL JUSTICE INFORMATION SYSTEM. Data received by
the Texas Department of Criminal Justice that is required by the
Department of Public Safety for the preparation of a criminal
history record shall be made available to the computerized criminal
history system not later than the seventh day after the date on
which the Texas Department of Criminal Justice receives the request
for the data from the Department of Public Safety. (Code Crim.
Proc., Art. 60.02(f) (part).)
Art. 66.104. DUTIES OF LICENSING AGENCIES TO PROVIDE
INFORMATION REGARDING LICENSE HOLDERS. (a) The Texas Medical
Board, the Texas State Board of Podiatric Medical Examiners, the
State Board of Dental Examiners, the Texas State Board of Pharmacy,
the Texas State Board of Examiners of Psychologists, and the State
Board of Veterinary Medical Examiners shall provide to the
Department of Public Safety through electronic means, magnetic
tape, or disk, as specified by the department, a list of each person
licensed by the respective agency, including the person's name and
date of birth and any other personal descriptive information
required by the department. Each agency shall update the
information and submit the updated information quarterly to the
department.
(b) The Department of Public Safety shall:
(1) perform at least quarterly a computer match of the
licensing list against the convictions maintained in the
computerized criminal history system; and
(2) report to the appropriate licensing agency for
verification and administrative action, as considered appropriate
by the licensing agency, the name of any person found to have a
record of conviction, other than a defendant whose prosecution is
deferred during a period of community supervision without an
adjudication of guilt or a plea of guilty.
(c) The Department of Public Safety may charge a licensing
agency a fee not to exceed the actual direct cost incurred by the
department in performing a computer match and reporting to the
agency under Subsection (b).
(d) The transmission of information by electronic means
under Subsection (a) does not affect whether the information is
subject to disclosure under Chapter 552, Government Code. (Code
Crim. Proc., Art. 60.061.)
Art. 66.105. INFORMATION RELATED TO MISUSED IDENTITY. (a)
On receipt of information from a local law enforcement agency under
Article 2.28, the Department of Public Safety shall:
(1) provide the notice described by Article 2.28(1) to
the person whose identity was misused, if the local law enforcement
agency was unable to notify the person under that subdivision;
(2) take action to ensure that the information
maintained in the computerized criminal history system reflects the
use of the person's identity as a stolen alias; and
(3) notify the Texas Department of Criminal Justice
that the person's identifying information may have been falsely
used by an inmate in the custody of the Texas Department of Criminal
Justice.
(b) On receipt of a declaration under Section 411.0421,
Government Code, or on receipt of information similar to that
contained in a declaration filed under that section, the Department
of Public Safety shall separate information maintained in the
computerized criminal history system regarding an individual whose
identity has been misused from information maintained in that
system regarding the person who misused the identity. (Code Crim.
Proc., Art. 60.19.)
Art. 66.106. INFORMATION RELATED TO NON-FINGERPRINT
SUPPORTED ACTIONS. (a) On receipt of a report of prosecution or
court disposition information from a jurisdiction for which
corresponding arrest data does not exist in the computerized
criminal history system, the Department of Public Safety shall
enter the report into a non-fingerprint supported file that is
separate from the computerized criminal history system.
(b) The Department of Public Safety shall grant access to
records in a non-fingerprint supported file created under
Subsection (a) that include the subject's name or other identifier
in the same manner as the department is required to grant access to
criminal history record information under Subchapter F, Chapter
411, Government Code.
(c) On receipt of a report of arrest information that
corresponds to a record in a non-fingerprint supported file created
under Subsection (a), the Department of Public Safety shall
transfer the record from the non-fingerprint supported file to the
computerized criminal history system. (Code Crim. Proc., Art.
60.20.)
SUBCHAPTER D. CORRECTIONS TRACKING SYSTEM
Art. 66.151. CORRECTIONS TRACKING SYSTEM DATABASE. (a)
The Texas Department of Criminal Justice shall record data and
establish and maintain the corrections tracking system.
(b) The corrections tracking system must contain the
information required by this chapter. (Code Crim. Proc., Arts.
60.02(a), (d).)
Art. 66.152. INFORMATION CONTAINED IN CORRECTIONS TRACKING
SYSTEM. (a) Information in the corrections tracking system
relating to a sentence to be served under the jurisdiction of the
Texas Department of Criminal Justice must include:
(1) the offender's name;
(2) the offender's state identification number;
(3) the sentencing date;
(4) the sentence for each offense, by offense code and
incident number;
(5) if the offender was sentenced to imprisonment:
(A) the unit of imprisonment;
(B) the length of the sentence for each offense;
and
(C) if multiple sentences were ordered, whether
the sentences were ordered to be served consecutively or
concurrently; and
(6) if a sentence other than a fine or imprisonment was
ordered, a description of the sentence ordered.
(b) Sentencing information in the corrections tracking
system must also include the following information about each
community supervision, including deferred adjudication community
supervision, or other alternative to imprisonment ordered:
(1) each conviction for which a sentence was ordered
but was deferred, probated, suspended, or otherwise not imposed, by
offense code and incident number; and
(2) if a sentence or portion of a sentence of
imprisonment was deferred, probated, suspended, or otherwise not
imposed:
(A) the offense, the sentence, and the amount of
the sentence deferred, probated, suspended, or otherwise not
imposed;
(B) a statement of whether any return to
imprisonment or confinement was a condition of community
supervision or an alternative sentence;
(C) the community supervision and corrections
department exercising jurisdiction over the offender;
(D) the date the offender was received by a
community supervision and corrections department;
(E) any program in which the offender is placed
or has previously been placed and the level of supervision on which
the offender is placed while under the jurisdiction of a community
supervision and corrections department;
(F) the date a program described by Paragraph (E)
begins, the date the program ends, and whether the program was
completed successfully;
(G) the date a level of supervision described by
Paragraph (E) begins and the date the level of supervision ends;
(H) if the offender's community supervision is
revoked:
(i) the reason for the revocation and the
date of revocation, by offense code and incident number; and
(ii) other current sentences of community
supervision or other alternatives to confinement that have not been
revoked, by offense code and incident number; and
(I) the date of the offender's release from the
community supervision and corrections department.
(c) Information in the corrections tracking system relating
to the handling of offenders must include the following information
about each imprisonment, confinement, or execution of an offender:
(1) the date of the imprisonment or confinement;
(2) if the offender was sentenced to death:
(A) the date of execution; and
(B) if the death sentence was commuted, the
sentence to which the sentence of death was commuted and the date of
commutation;
(3) the date the offender was released from
imprisonment or confinement and whether the release was a discharge
or a release on parole or to mandatory supervision;
(4) if the offender is released on parole or to
mandatory supervision:
(A) the offense for which the offender was
convicted, by offense code and incident number;
(B) the date the offender was received by an
office of the parole division of the Texas Department of Criminal
Justice;
(C) the county in which the offender resides
while under supervision;
(D) any program in which the offender is placed
or has previously been placed and the level of supervision on which
the offender is placed while under the jurisdiction of the parole
division;
(E) the date a program described by Paragraph (D)
begins, the date the program ends, and whether the program was
completed successfully;
(F) the date a level of supervision described by
Paragraph (D) begins and the date the level of supervision ends;
(G) if the offender's release status is revoked,
the reason for the revocation and the date of revocation;
(H) the expiration date of the sentence; and
(I) the date on which the offender is:
(i) released from the parole division; or
(ii) granted clemency; and
(5) if the offender is released under Article
42A.202(b), the date of the offender's release. (Code Crim. Proc.,
Art. 60.052.)
SUBCHAPTER E. ACCESS TO INFORMATION IN CRIMINAL JUSTICE
INFORMATION SYSTEM
Art. 66.201. ACCESS TO DATABASES BY CRIMINAL JUSTICE
AGENCIES AND OTHER ENTITIES. (a) Criminal justice agencies, the
Legislative Budget Board, and the council are entitled to access
the databases of the Department of Public Safety, the Texas
Juvenile Justice Department, and the Texas Department of Criminal
Justice in accordance with applicable state or federal law or
regulations.
(b) The access granted by this article does not entitle a
criminal justice agency, the Legislative Budget Board, or the
council to add, delete, or alter data maintained by another agency.
(Code Crim. Proc., Art. 60.03(a).)
Art. 66.202. REQUEST FOR DATA FILE FROM DATABASES.
(a) The council or the Legislative Budget Board may submit to the
Department of Public Safety, the Texas Juvenile Justice Department,
and the Texas Department of Criminal Justice an annual request for a
data file containing data elements from the departments' systems.
(b) The Department of Public Safety, the Texas Juvenile
Justice Department, and the Texas Department of Criminal Justice
shall provide the council and the Legislative Budget Board with the
data file for the period requested, in accordance with state and
federal law and regulations.
(c) If the council submits a data file request other than
the annual data file request, the director of the agency
maintaining the requested records must approve the request.
(d) The Legislative Budget Board may submit a data file
request other than the annual data file request without the
approval of the director of the agency maintaining the requested
records. (Code Crim. Proc., Art. 60.03(b).)
Art. 66.203. PUBLIC DISCLOSURE OF DATA PROHIBITED. A
criminal justice agency, the council, and the Legislative Budget
Board may not disclose to the public information in an individual's
criminal history record if the record is protected by state or
federal law or regulation. (Code Crim. Proc., Art. 60.03(c).)
SUBCHAPTER F. DATA COLLECTION AND SUBMISSION
Art. 66.251. UNIFORM INCIDENT FINGERPRINT CARD. (a) The
Department of Public Safety, in consultation with the council,
shall design, print, and distribute a uniform incident fingerprint
card to each law enforcement agency in this state.
(b) The uniform incident fingerprint card must be:
(1) serially numbered with an incident number in such
a manner that the individual incident of arrest may be readily
ascertained; and
(2) a multiple-part form that:
(A) has space for information relating to each
charge for which a person is arrested, the person's fingerprints,
and other information relevant to the arrest;
(B) can be transmitted with the offender through
the criminal justice process; and
(C) allows each law enforcement agency to report
required data to the Department of Public Safety or the Texas
Department of Criminal Justice.
(c) Subject to available telecommunications capacity, the
Department of Public Safety shall develop the capability to receive
the information on the uniform incident fingerprint card by
electronic means from a law enforcement agency. The information
must be in a form that is compatible with the form required for data
supplied to the criminal justice information system. (Code Crim.
Proc., Arts. 60.01(15), 60.07.)
Art. 66.252. REPORTING OF INFORMATION BY LOCAL ENTITIES.
(a) The Department of Public Safety and the Texas Department of
Criminal Justice by rule shall develop reporting procedures that:
(1) ensure that the offender processing data is
reported from the time an offender is arrested until the time an
offender is released; and
(2) provide measures and policies designed to identify
and eliminate redundant reporting of information to the criminal
justice information system.
(b) The arresting law enforcement agency shall prepare a
uniform incident fingerprint card described by Article 66.251 and
initiate the reporting process for each offender charged with a
felony or a misdemeanor other than a misdemeanor punishable by fine
only.
(c) The clerk of the court exercising jurisdiction over a
case shall report the disposition of the case to the Department of
Public Safety.
(d) Except as provided by Subsection (e) or as otherwise
required by applicable state law or rule, information or data
required by this chapter to be reported to the Department of Public
Safety or the Texas Department of Criminal Justice shall be
reported promptly but not later than the 30th day after the date on
which the information or data is received by the agency responsible
for reporting it.
(e) An offender's arrest shall be reported to the Department
of Public Safety not later than the seventh day after the date of
the arrest.
(f) A court that orders the release of an offender under
Article 42A.202(b) when the offender is under a bench warrant and
not physically imprisoned in the Texas Department of Criminal
Justice shall report the release to the department not later than
the seventh day after the date of the release. (Code Crim. Proc.,
Art. 60.08.)
Art. 66.253. COMPATIBILITY OF DATA. (a) Data supplied to
the criminal justice information system must:
(1) be compatible with the system; and
(2) contain both incident numbers and state
identification numbers.
(b) A discrete submission of information under this chapter
must contain, in conjunction with the required information, the
person's name and state identification number. (Code Crim. Proc.,
Art. 60.04.)
Art. 66.254. ELECTRONIC REPORTING OF INFORMATION. Whenever
possible, information relating to dispositions and subsequent
offender processing data shall be reported electronically. (Code
Crim. Proc., Art. 60.02(h).)
Art. 66.255. INFORMATION ON SUBSEQUENT ARRESTS. The
Department of Public Safety and the Texas Department of Criminal
Justice shall develop the capability to send by electronic means
information about the subsequent arrest of a person under
supervision to:
(1) the community supervision and corrections
department serving the court of original jurisdiction; or
(2) the district parole office supervising the person.
(Code Crim. Proc., Art. 60.18.)
SUBCHAPTER G. DUTIES OF CRIMINAL JUSTICE AGENCIES AND CERTAIN
COURT CLERKS
Art. 66.301. DUTIES OF CRIMINAL JUSTICE AGENCIES. (a) Each
criminal justice agency shall:
(1) compile and maintain records needed for reporting
data required by the Department of Public Safety and the Texas
Department of Criminal Justice;
(2) transmit to the Department of Public Safety and
the Texas Department of Criminal Justice, when and in the manner
each department directs, all data required by the appropriate
department;
(3) give the Department of Public Safety and the Texas
Department of Criminal Justice, or the departments' accredited
agents, access to the agency for the purpose of inspection to
determine the completeness and accuracy of data reported;
(4) cooperate with the Department of Public Safety and
the Texas Department of Criminal Justice so that each department
may properly and efficiently perform the department's duties under
this chapter; and
(5) cooperate with the Department of Public Safety
and the Texas Department of Criminal Justice to identify and
eliminate redundant reporting of information to the criminal
justice information system.
(b) An optical disk or other technology may be used instead
of microfilm as a medium to store information if allowed by the
applicable state laws or rules relating to the archiving of state
agency information. (Code Crim. Proc., Arts. 60.06(a), (d).)
Art. 66.302. PUBLIC DISCLOSURE NOT AUTHORIZED. (a) An
individual's identifiable description or a notation of an
individual's arrest, detention, indictment, information, or other
formal criminal charge and of any disposition of the charge,
including sentencing, correctional supervision, and release, that
is collected and compiled by the Department of Public Safety or the
Texas Department of Criminal Justice from criminal justice agencies
and maintained in a central location is not subject to public
disclosure except as authorized by federal or state law or
regulation.
(b) Subsection (a) does not apply to a document maintained
by a criminal justice agency that is the source of information
collected by the Department of Public Safety or the Texas
Department of Criminal Justice. Each criminal justice agency shall
retain the documents described by this subsection. (Code Crim.
Proc., Arts. 60.06(b), (c).)
Art. 66.303. PROHIBITED ACTS. An agency official may not
intentionally conceal or destroy any record with the intent to
violate this subchapter. (Code Crim. Proc., Art. 60.06(e).)
Art. 66.304. APPLICABILITY TO DISTRICT COURT AND COUNTY
COURT CLERKS. The duties imposed on a criminal justice agency under
this subchapter are also imposed on district court and county court
clerks. (Code Crim. Proc., Art. 60.06(f).)
SUBCHAPTER H. OVERSIGHT AND REPORTING
Art. 66.351. BIENNIAL PLANS. The Department of Public
Safety and the Texas Department of Criminal Justice, with advice
from the council and the Department of Information Resources, shall
develop biennial plans to:
(1) improve the reporting and accuracy of the criminal
justice information system; and
(2) develop and maintain monitoring systems capable of
identifying missing information. (Code Crim. Proc., Art.
60.02(i).)
Art. 66.352. EXAMINATION OF RECORDS AND OPERATIONS. (a) At
least once during each five-year period, the council shall
coordinate an examination of the records and operations of the
criminal justice information system to ensure:
(1) the accuracy and completeness of information in
the system; and
(2) the promptness of information reporting.
(b) The state auditor or other appropriate entity selected
by the council shall conduct the examination under Subsection (a)
with the cooperation of the council, the Department of Public
Safety, and the Texas Department of Criminal Justice.
(c) The council, the Department of Public Safety, and the
Texas Department of Criminal Justice may examine the records of the
agencies required to report information to the Department of Public
Safety or the Texas Department of Criminal Justice.
(d) The examining entity under Subsection (b) shall submit
to the legislature and the council a report that summarizes the
findings of each examination and contains recommendations for
improving the criminal justice information system.
(e) Not later than the first anniversary of the date the
examining entity under Subsection (b) submits a report under
Subsection (d), the Department of Public Safety shall report to the
Legislative Budget Board, the governor, and the council the
department's progress in implementing the examining entity's
recommendations, including the reason for not implementing any
recommendation.
(f) Each year following the submission of the report
described by Subsection (e), the Department of Public Safety shall
submit a similar report until each of the examining entity's
recommendations is implemented.
(g) Notwithstanding any other provision of this article,
work performed under this article by the state auditor is subject to
approval by the legislative audit committee for inclusion in the
audit plan under Section 321.013(c), Government Code. (Code Crim.
Proc., Arts. 60.02(j), (m).)
Art. 66.353. MONITORING AND REPORTING DUTIES OF DEPARTMENT
OF PUBLIC SAFETY. (a) The Department of Public Safety shall:
(1) monitor the submission of arrest and disposition
information by local jurisdictions;
(2) annually submit to the Legislative Budget Board,
the governor, the lieutenant governor, the state auditor, and the
standing committees in the senate and house of representatives with
primary jurisdiction over criminal justice and the department a
report regarding the level of reporting by local jurisdictions;
(3) identify local jurisdictions that do not report
arrest or disposition information or that partially report
information; and
(4) for use in determining the status of outstanding
dispositions, publish monthly on the department's Internet website
or in another electronic publication a report listing by local
jurisdiction each arrest for which there is no corresponding final
court disposition.
(b) The report described by Subsection (a)(2) must contain a
disposition completeness percentage for each county in this state.
For purposes of this subsection, "disposition completeness
percentage" means the percentage of arrest charges a county reports
to the Department of Public Safety, to be entered in the
computerized criminal history system under this chapter, that were
brought against a person in the county and for which a disposition
has been subsequently reported and entered in the computerized
criminal history system. (Code Crim. Proc., Arts. 60.21(b), (c).)
Art. 66.354. LOCAL DATA ADVISORY BOARDS. (a) The
commissioners court of each county may create a local data advisory
board to:
(1) analyze the structure of local automated and
manual data systems to identify redundant data entry and data
storage;
(2) develop recommendations for the commissioners to
improve the local data systems;
(3) develop recommendations, when appropriate, for
the effective electronic transfer of required data from local
agencies to state agencies; and
(4) perform any related duties to be determined by the
commissioners court.
(b) Local officials responsible for collecting, storing,
reporting, and using data may be appointed to a local data advisory
board.
(c) The council and the Department of Public Safety shall,
to the extent that resources allow, provide technical assistance
and advice on the request of a local data advisory board. (Code
Crim. Proc., Art. 60.09.)
SUBCHAPTER I. GRANTS
Art. 66.401. GRANTS FOR CRIMINAL JUSTICE PROGRAMS. The
council, the Department of Public Safety, the criminal justice
division of the governor's office, and the Department of
Information Resources cooperatively shall develop and adopt a grant
program, to be implemented by the criminal justice division at a
time and in a manner determined by the division, to aid local law
enforcement agencies, prosecutors, and court personnel in
obtaining equipment and training necessary to operate a
telecommunications network capable of:
(1) making inquiries to and receiving responses from
the statewide automated fingerprint identification system and from
the computerized criminal history system; and
(2) transmitting information to those systems. (Code
Crim. Proc., Art. 60.02(k).)
Art. 66.402. CERTIFICATION REQUIRED. Before allocating
money to a county from any federal or state grant program for the
enhancement of criminal justice programs, an agency of the state
must certify that, using all or part of the allocated money, the
county has taken or will take all action necessary to provide the
Department of Public Safety and the Texas Department of Criminal
Justice any criminal history records maintained by the county in
the manner specified for purposes of those departments. (Code
Crim. Proc., Art. 60.14.)
SECTION 1.04. Title 1, Code of Criminal Procedure, is amended by adding Chapter 67 to read as follows:
CHAPTER 67. COMPILATION OF INFORMATION PERTAINING TO COMBINATIONS
AND CRIMINAL STREET GANGS
SUBCHAPTER A. GENERAL PROVISIONS
Art. 67.001. DEFINITIONS
SUBCHAPTER B. INTELLIGENCE DATABASES
Art. 67.051. INTELLIGENCE DATABASES REQUIRED
Art. 67.052. DEPARTMENT INTELLIGENCE DATABASE
Art. 67.053. INTELLIGENCE DATABASE USER TRAINING;
RULES
Art. 67.054. SUBMISSION CRITERIA
SUBCHAPTER C. RELEASE AND USE OF INFORMATION
Art. 67.101. RELEASE AND USE OF INFORMATION
Art. 67.102. CRIMINAL INFORMATION RELATING TO CHILD
Art. 67.103. UNAUTHORIZED RELEASE OR USE OF CRIMINAL
INFORMATION; PENALTY
SUBCHAPTER D. REMOVAL OF INFORMATION
Art. 67.151. REMOVAL OF INFORMATION RELATING TO
INDIVIDUAL OTHER THAN CHILD
Art. 67.152. REMOVAL OF INFORMATION RELATING TO CHILD
SUBCHAPTER E. RIGHTS OF SUBJECT OF CRIMINAL INFORMATION
Art. 67.201. RIGHT TO REQUEST EXISTENCE OF CRIMINAL
INFORMATION
Art. 67.202. RIGHT TO REQUEST REVIEW OF CRIMINAL
INFORMATION
Art. 67.203. JUDICIAL REVIEW
SUBCHAPTER F. GANG RESOURCE SYSTEM
Art. 67.251. ESTABLISHMENT OF GANG RESOURCE SYSTEM
Art. 67.252. INFORMATION INCLUDED IN GANG RESOURCE
SYSTEM
Art. 67.253. INCLUSION OF CERTAIN INFORMATION PROHIBITED
Art. 67.254. COLLECTION OF INFORMATION
Art. 67.255. USE OF INFORMATION
Art. 67.256. ACCESS TO INFORMATION
SUBCHAPTER G. TEXAS VIOLENT GANG TASK FORCE
Art. 67.301. DEFINITION
Art. 67.302. PURPOSE
Art. 67.303. TASK FORCE MEMBERS
Art. 67.304. DUTIES OF TASK FORCE
Art. 67.305. DUTIES OF DEPARTMENT REGARDING TASK FORCE
CHAPTER 67. COMPILATION OF INFORMATION PERTAINING TO COMBINATIONS
AND CRIMINAL STREET GANGS
SUBCHAPTER A. GENERAL PROVISIONS
Art. 67.001. DEFINITIONS. In this chapter:
(1) "Administration of criminal justice" has the
meaning assigned by Article 66.001.
(2) "Child" has the meaning assigned by Section 51.02,
Family Code.
(3) "Combination" has the meaning assigned by Section
71.01, Penal Code.
(4) "Criminal activity" means conduct that is subject
to prosecution.
(5) "Criminal information" means facts, material,
photographs, or data reasonably related to the investigation or
prosecution of criminal activity.
(6) "Criminal justice agency" means:
(A) an entity defined as a criminal justice
agency under Article 66.001; or
(B) a municipal or county agency, or school
district law enforcement agency, that is engaged in the
administration of criminal justice under a statute or executive
order.
(7) "Criminal street gang" has the meaning assigned by
Section 71.01, Penal Code.
(8) "Department" means the Department of Public Safety
of the State of Texas.
(9) "Intelligence database" means a collection or
compilation of data organized for search and retrieval to evaluate,
analyze, disseminate, or use intelligence information relating to a
combination or criminal street gang for the purpose of
investigating or prosecuting a criminal offense.
(10) "Juvenile justice agency" has the meaning
assigned by Section 58.101, Family Code.
(11) "Law enforcement agency" does not include the
Texas Department of Criminal Justice, the Texas Juvenile Justice
Department, or a local juvenile probation department. (Code Crim.
Proc., Art. 61.01.)
SUBCHAPTER B. INTELLIGENCE DATABASES
Art. 67.051. INTELLIGENCE DATABASES REQUIRED. (a) Subject
to Subsection (b), a criminal justice agency or juvenile justice
agency shall compile criminal information into an intelligence
database for the purpose of investigating or prosecuting the
criminal activities of combinations or criminal street gangs.
(b) A law enforcement agency in a municipality with a
population of 50,000 or more or in a county with a population of
100,000 or more shall compile and maintain in a local or regional
intelligence database criminal information relating to a criminal
street gang as provided by Subsection (a). The agency must compile
and maintain the information in accordance with the criminal
intelligence systems operating policies established under 28
C.F.R. Section 23.1 et seq. and the submission criteria established
under Article 67.054(b).
(c) Information described by this article may be compiled on
paper, by computer, or in any other useful manner by a criminal
justice agency, juvenile justice agency, or law enforcement agency.
(d) A local law enforcement agency described by Subsection
(b) shall send to the department information the agency compiles
and maintains under this chapter. (Code Crim. Proc., Arts.
61.02(a), (b), (b-1), 61.03(c).)
Art. 67.052. DEPARTMENT INTELLIGENCE DATABASE. (a) The
department shall establish an intelligence database and shall
maintain information received from an agency under Article
67.051(d) in the database in accordance with the criminal
intelligence systems operating policies established under 28
C.F.R. Section 23.1 et seq. and the submission criteria under
Article 67.054(b).
(b) The department shall designate a code to distinguish
criminal information relating to a child and contained in the
department's intelligence database from criminal information
relating to an adult offender and contained in the database. (Code
Crim. Proc., Arts. 61.02(b) (part), 61.03(d), (e).)
Art. 67.053. INTELLIGENCE DATABASE USER TRAINING; RULES.
(a) The department shall enter into a memorandum of understanding
with the United States Department of Justice or other appropriate
federal department or agency to provide any person in this state who
enters information into or retrieves information from an
intelligence database described by this chapter with training
regarding the operating principles described by 28 C.F.R. Part 23,
as those principles relate to an intelligence database established
or maintained under this chapter.
(b) A person in this state who enters information into or
retrieves information from an intelligence database described by
this chapter shall complete continuing education training on the
material described by Subsection (a) at least once for each
continuous two-year period the person has primary responsibility
for performing a function described by this subsection.
(c) The department shall adopt rules necessary to implement
this article. (Code Crim. Proc., Art. 61.12.)
Art. 67.054. SUBMISSION CRITERIA. (a) In this article:
(1) "Family member" means a person related to another
person within the third degree by consanguinity or affinity, as
described by Subchapter B, Chapter 573, Government Code, except
that the term does not include a person who is considered to be
related to another person by affinity only as described by Section
573.024(b), Government Code.
(2) "Penal institution" means:
(A) a confinement facility operated by or under
contract with any division of the Texas Department of Criminal
Justice;
(B) a confinement facility operated by or under
contract with the Texas Juvenile Justice Department;
(C) a juvenile secure pre-adjudication or
post-adjudication facility operated by or under a local juvenile
probation department; or
(D) a county jail.
(b) Criminal information collected under this chapter
relating to a criminal street gang must:
(1) be relevant to the identification of an
organization that is reasonably suspected of involvement in
criminal activity; and
(2) consist of:
(A) a judgment under any law that includes, as a
finding or as an element of a criminal offense, participation in a
criminal street gang;
(B) a self-admission by an individual of criminal
street gang membership that is made during a judicial proceeding;
or
(C) except as provided by Subsection (c), any two
of the following:
(i) a self-admission by the individual of
criminal street gang membership that is not made during a judicial
proceeding, including the use of the Internet or other electronic
format or medium to post photographs or other documentation
identifying the individual as a member of a criminal street gang;
(ii) an identification of the individual as
a criminal street gang member by a reliable informant or other
individual;
(iii) a corroborated identification of the
individual as a criminal street gang member by an informant or other
individual of unknown reliability;
(iv) evidence that the individual frequents
a documented area of a criminal street gang and associates with
known criminal street gang members;
(v) evidence that the individual uses, in
more than an incidental manner, criminal street gang dress, hand
signals, tattoos, or symbols, including expressions of letters,
numbers, words, or marks, regardless of how or the means by which
the symbols are displayed, that are associated with a criminal
street gang that operates in an area frequented by the individual
and described by Subparagraph (iv);
(vi) evidence that the individual has been
arrested or taken into custody with known criminal street gang
members for an offense or conduct consistent with criminal street
gang activity;
(vii) evidence that the individual has
visited a known criminal street gang member, other than a family
member of the individual, while the gang member is confined in or
committed to a penal institution; or
(viii) evidence of the individual's use of
technology, including the Internet, to recruit new criminal street
gang members.
(c) Evidence described by Subsections (b)(2)(C)(iv) and
(vii) is not sufficient to create the eligibility of a person's
information to be included in an intelligence database described by
this chapter unless the evidence is combined with information
described by another subparagraph of Subsection (b)(2)(C). (Code
Crim. Proc., Arts. 61.02(c), (d), (e).)
SUBCHAPTER C. RELEASE AND USE OF INFORMATION
Art. 67.101. RELEASE AND USE OF INFORMATION. (a) On
request, a criminal justice agency may release information
maintained under this chapter to:
(1) another criminal justice agency;
(2) a court; or
(3) a defendant in a criminal proceeding who is
entitled to the discovery of the information under Chapter 39.
(b) A criminal justice agency or court may use information
received under this article or Article 67.051(d) or 67.052 only for
the administration of criminal justice.
(c) A defendant may use information received under this
article or Article 67.051(d) or 67.052 only for a defense in a
criminal proceeding. (Code Crim. Proc., Arts. 61.03(a), (b).)
Art. 67.102. CRIMINAL INFORMATION RELATING TO CHILD. (a)
Notwithstanding Chapter 58, Family Code, criminal information
relating to a child associated with a combination or criminal
street gang may be compiled and released under this chapter
regardless of the age of the child.
(b) A criminal justice agency or juvenile justice agency may
release information maintained under this chapter to an attorney
representing a child who is a party to a proceeding under Title 3,
Family Code, if the juvenile court determines the information:
(1) is material to the proceeding; and
(2) is not privileged under law.
(c) An attorney may use information received under this
article only for a child's defense in a proceeding under Title 3,
Family Code.
(d) The governing body of a county or municipality served by
a law enforcement agency described by Article 67.051(b) may adopt a
policy to notify the parent or guardian of a child of the agency's
observations relating to the child's association with a criminal
street gang. (Code Crim. Proc., Art. 61.04.)
Art. 67.103. UNAUTHORIZED RELEASE OR USE OF CRIMINAL
INFORMATION; PENALTY. (a) A person commits an offense if the
person knowingly:
(1) uses criminal information obtained under this
chapter for an unauthorized purpose; or
(2) releases the information to a person who is not
entitled to the information.
(b) An offense under this article is a Class A misdemeanor.
(Code Crim. Proc., Art. 61.05.)
SUBCHAPTER D. REMOVAL OF INFORMATION
Art. 67.151. REMOVAL OF INFORMATION RELATING TO INDIVIDUAL
OTHER THAN CHILD. (a) This article does not apply to information
collected under this chapter by the Texas Department of Criminal
Justice or the Texas Juvenile Justice Department.
(b) Subject to Subsection (c), information collected under
this chapter relating to a criminal street gang must be removed
after five years from an intelligence database established under
Article 67.051 and the intelligence database maintained by the
department under Article 67.052 if:
(1) the information relates to the investigation or
prosecution of criminal activity engaged in by an individual other
than a child; and
(2) the individual who is the subject of the
information has not been arrested for criminal activity reported to
the department under Chapter 66.
(c) The five-year period described by Subsection (b) does
not include any period during which the individual who is the
subject of the information is:
(1) confined in a correctional facility operated by or
under contract with the Texas Department of Criminal Justice;
(2) committed to a secure correctional facility, as
defined by Section 51.02, Family Code, operated by or under
contract with the Texas Juvenile Justice Department; or
(3) confined in a county jail or confined in or
committed to a facility operated by a juvenile board in lieu of
being confined in a correctional facility described by Subdivision
(1) or committed to a secure correctional facility described by
Subdivision (2). (Code Crim. Proc., Art. 61.06.)
Art. 67.152. REMOVAL OF INFORMATION RELATING TO CHILD. (a)
This article does not apply to information collected under this
chapter by the Texas Department of Criminal Justice or the Texas
Juvenile Justice Department.
(b) Subject to Subsection (c), information collected under
this chapter relating to a criminal street gang must be removed
after two years from an intelligence database established under
Article 67.051 and the intelligence database maintained by the
department under Article 67.052 if:
(1) the information relates to the investigation or
prosecution of criminal activity engaged in by a child; and
(2) the child who is the subject of the information has
not been:
(A) arrested for criminal activity reported to
the department under Chapter 66; or
(B) taken into custody for delinquent conduct
reported to the department under Chapter 58, Family Code.
(c) The two-year period described by Subsection (b) does not
include any period during which the child who is the subject of the
information is:
(1) committed to the Texas Juvenile Justice Department
for conduct that violates a penal law of the grade of felony; or
(2) confined in the Texas Department of Criminal
Justice. (Code Crim. Proc., Art. 61.07.)
SUBCHAPTER E. RIGHTS OF SUBJECT OF CRIMINAL INFORMATION
Art. 67.201. RIGHT TO REQUEST EXISTENCE OF CRIMINAL
INFORMATION. (a) A person or the parent or guardian of a child may
request that a law enforcement agency determine whether the agency
has collected or is maintaining, under submission criteria
established under Article 67.054(b), criminal information relating
solely to the person or child. The law enforcement agency shall
respond to the request not later than the 10th business day after
the date the agency receives the request.
(b) Before responding to a request under Subsection (a), a
law enforcement agency may require reasonable written verification
of the identity of the person making the request and the
relationship between the parent or guardian and the child, if
applicable, including written verification of an address, date of
birth, driver's license number, state identification card number,
or social security number. (Code Crim. Proc., Art. 61.075.)
Art. 67.202. RIGHT TO REQUEST REVIEW OF CRIMINAL
INFORMATION. (a) On receipt of a written request of a person or the
parent or guardian of a child that includes a showing by the person
or the parent or guardian that a law enforcement agency may have
collected criminal information under this chapter relating to the
person or child that is inaccurate or does not comply with the
submission criteria under Article 67.054(b), the head of the agency
or the designee of the agency head shall review criminal
information collected by the agency under this chapter relating to
the person or child to determine if:
(1) reasonable suspicion exists to believe that the
information is accurate; and
(2) the information complies with the submission
criteria established under Article 67.054(b).
(b) If, after conducting a review of criminal information
under Subsection (a), the agency head or designee determines that
reasonable suspicion does not exist to believe that the information
is accurate, or determines that the information does not comply
with the submission criteria, the agency shall:
(1) destroy all records containing the information;
and
(2) notify the department and the person who requested
the review of the agency's determination and the destruction of the
records.
(c) If, after conducting a review of criminal information
under Subsection (a), the agency head or designee determines that
reasonable suspicion exists to believe that the information is
accurate, and determines that the information complies with the
submission criteria, the agency shall notify the person who
requested the review:
(1) of the agency's determination; and
(2) that the person is entitled to seek judicial
review of the agency's determination under Article 67.203.
(d) On receipt of notice under Subsection (b)(2), the
department immediately shall destroy all records containing the
information that is the subject of the notice in the intelligence
database maintained by the department under Article 67.052.
(e) A person who is committed to the Texas Juvenile Justice
Department or confined in the Texas Department of Criminal Justice
does not, while committed or confined, have the right to request
review of criminal information under this article. (Code Crim.
Proc., Art. 61.08.)
Art. 67.203. JUDICIAL REVIEW. (a) A person who is entitled
to seek judicial review of a determination made under Article
67.202(c) may file a petition for review in district court in the
county in which the person resides.
(b) On the filing of a petition for review under Subsection
(a), the district court shall conduct an in camera review of the
criminal information that is the subject of the determination to
determine if:
(1) reasonable suspicion exists to believe that the
information is accurate; and
(2) the information complies with the submission
criteria under Article 67.054(b).
(c) If, after conducting an in camera review of criminal
information under Subsection (b), the court finds that reasonable
suspicion does not exist to believe that the information is
accurate, or finds that the information does not comply with the
submission criteria, the court shall:
(1) order the law enforcement agency that collected
the information to destroy all records containing the information;
and
(2) notify the department of the court's determination
and the destruction of the records.
(d) A petitioner may appeal a final judgment of a district
court conducting an in camera review under this article.
(e) Information that is the subject of an in camera review
under this article is confidential and may not be disclosed. (Code
Crim. Proc., Art. 61.09.)
SUBCHAPTER F. GANG RESOURCE SYSTEM
Art. 67.251. ESTABLISHMENT OF GANG RESOURCE SYSTEM. The
office of the attorney general shall establish an electronic gang
resource system to provide criminal justice agencies and juvenile
justice agencies with information about criminal street gangs in
this state. (Code Crim. Proc., Art. 61.11(a) (part).)
Art. 67.252. INFORMATION INCLUDED IN GANG RESOURCE SYSTEM.
(a) The gang resource system established under Article 67.251 may
include the following information with regard to any gang:
(1) gang name;
(2) gang identifiers, such as colors used, tattoos,
and clothing preferences;
(3) criminal activities;
(4) migration trends;
(5) recruitment activities; and
(6) a local law enforcement contact.
(b) Information in the gang resource system shall be
accessible according to:
(1) municipality or county; and
(2) gang name.
(c) The office of the attorney general may coordinate with
the Texas Department of Criminal Justice to include information in
the gang resource system regarding groups that have been identified
by the Security Threat Group Management Office of the Texas
Department of Criminal Justice. (Code Crim. Proc., Arts. 61.11(a)
(part), (g), (h).)
Art. 67.253. INCLUSION OF CERTAIN INFORMATION PROHIBITED.
Information relating to the identity of a specific offender or
alleged offender may not be maintained in the gang resource system.
(Code Crim. Proc., Art. 61.11(d).)
Art. 67.254. COLLECTION OF INFORMATION. (a) On request by
the office of the attorney general, a criminal justice agency or
juvenile justice agency shall make a reasonable attempt to provide
gang information to the office of the attorney general for the
purpose of maintaining an updated, comprehensive gang resource
system.
(b) The office of the attorney general shall cooperate with
criminal justice agencies and juvenile justice agencies in
collecting and maintaining the accuracy of the information included
in the gang resource system. (Code Crim. Proc., Arts. 61.11(b),
(c).)
Art. 67.255. USE OF INFORMATION. Information in the gang
resource system may be used in investigating gang-related crimes.
Information from the system may be included in an affidavit or
subpoena or used in connection with any other legal or judicial
proceeding only if the information is corroborated by information
not provided by or maintained in the system. (Code Crim. Proc.,
Art. 61.11(e).)
Art. 67.256. ACCESS TO INFORMATION. Access to the gang
resource system shall be limited to criminal justice agency
personnel and juvenile justice agency personnel. (Code Crim.
Proc., Art. 61.11(f).)
SUBCHAPTER G. TEXAS VIOLENT GANG TASK FORCE
Art. 67.301. DEFINITION. In this subchapter, "task force"
means the Texas Violent Gang Task Force. (Code Crim. Proc., Art.
61.10(a).)
Art. 67.302. PURPOSE. The purpose of the task force is to
form a strategic partnership among local, state, and federal
criminal justice, juvenile justice, and correctional agencies to
better enable those agencies to take a proactive stance toward
tracking gang activity and the growth and spread of gangs
statewide. (Code Crim. Proc., Art. 61.10(b).)
Art. 67.303. TASK FORCE MEMBERS. The task force shall
consist of:
(1) a representative of the department designated by
the director of the department;
(2) two representatives of the Texas Department of
Criminal Justice, including a representative of the parole
division, designated by the executive director of that agency;
(3) a representative of the office of the inspector
general of the Texas Department of Criminal Justice designated by
the inspector general;
(4) two representatives of the Texas Juvenile Justice
Department designated by the executive director of that agency;
(5) a representative of the office of the attorney
general designated by the attorney general;
(6) six representatives who are local law enforcement
officers or local community supervision personnel, including
juvenile probation personnel, designated by the governor;
(7) two representatives who are local prosecutors
designated by the governor; and
(8) a representative of the Texas Alcoholic Beverage
Commission designated by the executive director of that agency.
(Code Crim. Proc., Art. 61.10(f).)
Art. 67.304. DUTIES OF TASK FORCE. (a) The task force
shall focus its efforts on:
(1) developing, through regional task force meetings,
a statewide networking system that will provide timely access to
gang information;
(2) establishing communication between different
criminal justice, juvenile justice, and correctional agencies,
combining independent agency resources, and joining agencies
together in a cooperative effort to focus on gang membership, gang
activity, and gang migration trends; and
(3) forming a working group of criminal justice,
juvenile justice, and correctional representatives from throughout
this state to discuss specific cases and investigations involving
gangs and other related gang activities.
(b) The task force may take any other actions necessary to
accomplish the purposes of this subchapter.
(c) If practicable, the task force shall consult with
representatives from one or more United States attorneys' offices
in this state and with representatives from the following federal
agencies who are available and assigned to a duty station in this
state:
(1) the Federal Bureau of Investigation;
(2) the Federal Bureau of Prisons;
(3) the United States Drug Enforcement
Administration;
(4) United States Immigration and Customs
Enforcement;
(5) United States Customs and Border Protection;
(6) the Bureau of Alcohol, Tobacco, Firearms and
Explosives;
(7) the United States Marshals Service; and
(8) the United States Probation and Pretrial Services
System. (Code Crim. Proc., Arts. 61.10(c), (d), (g).)
Art. 67.305. DUTIES OF DEPARTMENT REGARDING TASK FORCE.
The department shall support the task force to assist in
coordinating statewide antigang initiatives. (Code Crim. Proc.,
Art. 61.10(e).)
ARTICLE 2. CONFORMING AMENDMENTS FOR ARTICLES 18.20 AND 18.21,
CODE OF CRIMINAL PROCEDURE: CHAPTER 16, PENAL CODE
SECTION 2.01. Sections 16.02(a), (b), (c), (d), (e), and
(e-1), Penal Code, are amended to read as follows:
(a) In this section:
(1) "Communication [, "computer trespasser," "covert
entry," "communication] common carrier," "computer trespasser,"
"contents," "covert entry," "electronic communication,"
["electronic, mechanical, or other device," "immediate
life-threatening situation,"] "intercept," "interception device,"
"investigative or law enforcement officer," ["member of a law
enforcement unit specially trained to respond to and deal with
life-threatening situations,"] "oral communication," "protected
computer," ["readily accessible to the general public,"] and "wire
communication" have the meanings assigned by [given those terms in]
Article 18A.001 [18.20], Code of Criminal Procedure.
(2) "Immediate life-threatening situation" and
"member of a law enforcement unit specially trained to respond to
and deal with life-threatening situations" have the meanings
assigned by Article 18A.201, Code of Criminal Procedure.
(3) "Readily accessible to the general public" means,
with respect to a radio communication, a communication that is not:
(A) scrambled or encrypted;
(B) transmitted using modulation techniques
whose essential parameters have been withheld from the public with
the intention of preserving the privacy of the communication;
(C) carried on a subcarrier or other signal
subsidiary to a radio transmission;
(D) transmitted over a communication system
provided by a common carrier, unless the communication is a
tone-only paging system communication;
(E) transmitted on frequencies allocated under
Part 25, Subpart D, E, or F of Part 74, or Part 94 of the rules of the
Federal Communications Commission, unless, in the case of a
communication transmitted on a frequency allocated under Part 74
that is not exclusively allocated to broadcast auxiliary services,
the communication is a two-way voice communication by radio; or
(F) an electronic communication.
(b) A person commits an offense if the person:
(1) intentionally intercepts, endeavors to intercept,
or procures another person to intercept or endeavor to intercept a
wire, oral, or electronic communication;
(2) intentionally discloses or endeavors to disclose
to another person the contents of a wire, oral, or electronic
communication if the person knows or has reason to know the
information was obtained through the interception of a wire, oral,
or electronic communication in violation of this subsection;
(3) intentionally uses or endeavors to use the
contents of a wire, oral, or electronic communication if the person
knows or is reckless about whether the information was obtained
through the interception of a wire, oral, or electronic
communication in violation of this subsection;
(4) knowingly or intentionally effects a covert entry
for the purpose of intercepting wire, oral, or electronic
communications without court order or authorization; or
(5) intentionally uses, endeavors to use, or procures
any other person to use or endeavor to use any interception
[electronic, mechanical, or other] device to intercept any oral
communication when the device:
(A) is affixed to, or otherwise transmits a
signal through a wire, cable, or other connection used in wire
communications; or
(B) transmits communications by radio or
interferes with the transmission of communications by radio.
(c) It is an affirmative defense to prosecution under
Subsection (b) that:
(1) an operator of a switchboard or an officer,
employee, or agent of a communication common carrier whose
facilities are used in the transmission of a wire or electronic
communication intercepts a communication or discloses or uses an
intercepted communication in the normal course of employment while
engaged in an activity that is a necessary incident to the rendition
of service or to the protection of the rights or property of the
carrier of the communication, unless the interception results from
the communication common carrier's use of service observing or
random monitoring for purposes other than mechanical or service
quality control checks;
(2) an officer, employee, or agent of a communication
common carrier provides information, facilities, or technical
assistance to an investigative or law enforcement officer who is
authorized as provided by this section to intercept a wire, oral, or
electronic communication;
(3) a person acting under color of law intercepts:
(A) a wire, oral, or electronic communication, if
the person is a party to the communication or if one of the parties
to the communication has given prior consent to the interception;
(B) a wire, oral, or electronic communication, if
the person is acting under the authority of Chapter 18A [Article
18.20], Code of Criminal Procedure; or
(C) a wire or electronic communication made by a
computer trespasser and transmitted to, through, or from a
protected computer, if:
(i) the interception did not acquire a
communication other than one transmitted to or from the computer
trespasser;
(ii) the owner of the protected computer
consented to the interception of the computer trespasser's
communications on the protected computer; and
(iii) the actor was lawfully engaged in an
ongoing criminal investigation and the actor had reasonable
suspicion to believe that the contents of the computer trespasser's
communications likely to be obtained would be material to the
investigation;
(4) a person not acting under color of law intercepts a
wire, oral, or electronic communication, if:
(A) the person is a party to the communication;
or
(B) one of the parties to the communication has
given prior consent to the interception, unless the communication
is intercepted for the purpose of committing an unlawful act;
(5) a person acting under color of law intercepts a
wire, oral, or electronic communication if:
(A) oral or written consent for the interception
is given by a magistrate before the interception;
(B) an immediate life-threatening situation
exists;
(C) the person is a member of a law enforcement
unit specially trained to:
(i) respond to and deal with
life-threatening situations; or
(ii) install interception [electronic,
mechanical, or other] devices; and
(D) the interception ceases immediately on
termination of the life-threatening situation;
(6) an officer, employee, or agent of the Federal
Communications Commission intercepts a communication transmitted
by radio or discloses or uses an intercepted communication in the
normal course of employment and in the discharge of the monitoring
responsibilities exercised by the Federal Communications
Commission in the enforcement of Chapter 5, Title 47, United States
Code;
(7) a person intercepts or obtains access to an
electronic communication that was made through an electronic
communication system that is configured to permit the communication
to be readily accessible to the general public;
(8) a person intercepts radio communication, other
than a cordless telephone communication that is transmitted between
a cordless telephone handset and a base unit, that is transmitted:
(A) by a station for the use of the general
public;
(B) to ships, aircraft, vehicles, or persons in
distress;
(C) by a governmental, law enforcement, civil
defense, private land mobile, or public safety communications
system that is readily accessible to the general public, unless the
radio communication is transmitted by a law enforcement
representative to or from a mobile data terminal;
(D) by a station operating on an authorized
frequency within the bands allocated to the amateur, citizens band,
or general mobile radio services; or
(E) by a marine or aeronautical communications
system;
(9) a person intercepts a wire or electronic
communication the transmission of which causes harmful
interference to a lawfully operating station or consumer electronic
equipment, to the extent necessary to identify the source of the
interference;
(10) a user of the same frequency intercepts a radio
communication made through a system that uses frequencies monitored
by individuals engaged in the provision or the use of the system, if
the communication is not scrambled or encrypted; or
(11) a provider of an electronic communications
service records the fact that a wire or electronic communication
was initiated or completed in order to protect the provider,
another provider furnishing service towards the completion of the
communication, or a user of that service from fraudulent, unlawful,
or abusive use of the service.
(d) A person commits an offense if the person:
(1) intentionally manufactures, assembles, possesses,
or sells an interception [electronic, mechanical, or other] device
knowing or having reason to know that the device is designed
primarily for nonconsensual interception of wire, electronic, or
oral communications and that the device or a component of the device
has been or will be used for an unlawful purpose; or
(2) places in a newspaper, magazine, handbill, or
other publication an advertisement of an interception [electronic,
mechanical, or other] device:
(A) knowing or having reason to know that the
device is designed primarily for nonconsensual interception of
wire, electronic, or oral communications;
(B) promoting the use of the device for the
purpose of nonconsensual interception of wire, electronic, or oral
communications; or
(C) knowing or having reason to know that the
advertisement will promote the use of the device for the purpose of
nonconsensual interception of wire, electronic, or oral
communications.
(e) It is an affirmative defense to prosecution under
Subsection (d) that the manufacture, assembly, possession, or sale
of an interception [electronic, mechanical, or other] device that
is designed primarily for the purpose of nonconsensual interception
of wire, electronic, or oral communication is by:
(1) a communication common carrier or a provider of
wire or electronic communications service or an officer, agent, or
employee of or a person under contract with a communication common
carrier or service provider acting in the normal course of the
provider's or [communication] carrier's business;
(2) an officer, agent, or employee of a person under
contract with, bidding on contracts with, or doing business with
the United States or this state acting in the normal course of the
activities of the United States or this state;
(3) a member of the Department of Public Safety who is
specifically trained to install wire, oral, or electronic
communications intercept equipment; or
(4) a member of a local law enforcement agency that has
an established unit specifically designated to respond to and deal
with life-threatening situations.
(e-1) It is a defense to prosecution under Subsection (d)(1)
that the interception [electronic, mechanical, or other] device is
possessed by a person authorized to possess the device under
Section 500.008, Government Code, or Section 242.103, Human
Resources Code.
SECTION 2.02. Sections 16.03(b) and (c), Penal Code, are
amended to read as follows:
(b) In this section:
(1) "Authorized"[, "authorized] peace officer,"
["communications common carrier,"] "pen register," and "trap and
trace device" have the meanings assigned by Article 18B.001
[18.21], Code of Criminal Procedure.
(2) "Communication common carrier" has the meaning
assigned by Article 18A.001, Code of Criminal Procedure.
(c) It is an affirmative defense to prosecution under
Subsection (a) that the actor is:
(1) an officer, employee, or agent of a communication
[communications] common carrier and the actor installs or uses a
device or equipment to record a number dialed from or to a telephone
instrument in the normal course of business of the carrier for
purposes of:
(A) protecting property or services provided by
the carrier; or
(B) assisting another who the actor reasonably
believes to be a peace officer authorized to install or use a pen
register or trap and trace device under Chapter 18B [Article
18.21], Code of Criminal Procedure;
(2) an officer, employee, or agent of a lawful
enterprise and the actor installs or uses a device or equipment
while engaged in an activity that:
(A) is a necessary incident to the rendition of
service or to the protection of property of or services provided by
the enterprise; and
(B) is not made for the purpose of gathering
information for a law enforcement agency or private investigative
agency, other than information related to the theft of
communication or information services provided by the enterprise;
or
(3) a person authorized to install or use a pen
register or trap and trace device under Chapter 18B [Article
18.21], Code of Criminal Procedure.
SECTION 2.03. Sections 16.04(a) and (e), Penal Code, are
amended to read as follows:
(a) In this section:
(1) "Electronic[, "electronic] communication,"
["electronic storage,"] "user," and "wire communication" have the
meanings assigned by [to those terms in] Article 18A.001 [18.21],
Code of Criminal Procedure.
(2) "Electronic storage" has the meaning assigned by
Article 18B.001, Code of Criminal Procedure.
(e) It is an affirmative defense to prosecution under
Subsection (b) that the conduct was authorized by:
(1) the provider of the wire or electronic
communications service;
(2) the user of the wire or electronic communications
service;
(3) the addressee or intended recipient of the wire or
electronic communication; or
(4) Chapter 18B [Article 18.21], Code of Criminal
Procedure.
SECTION 2.04. Section 16.05(a), Penal Code, is amended to
read as follows:
(a) In this section, "electronic [communication,"
"electronic] communications service" has [service," and
"electronic communications system" have] the meaning assigned by
[meanings given those terms in] Article 18A.001 [18.20], Code of
Criminal Procedure.
ARTICLE 3. OTHER CONFORMING AMENDMENTS FOR ARTICLES 18.20 AND
18.21, CODE OF CRIMINAL PROCEDURE
SECTION 3.01. Section 71.0083(b), Agriculture Code, is
amended to read as follows:
(b) An agriculture warrant may be issued only by a
magistrate authorized to issue a search warrant under Chapter 18,
18A, or 18B, Code of Criminal Procedure, only after the department
has exercised reasonable efforts to obtain consent to conduct a
search, and on application by the department accompanied by a
supporting affidavit that establishes probable cause for the
issuance of the warrant. The warrant must describe:
(1) the street address and municipality or the parcel
number and county of each place or premises subject to the warrant;
and
(2) each type of plant pest or disease that is the
subject of the warrant.
SECTION 3.02. Section 123.001(2), Civil Practice and
Remedies Code, is amended to read as follows:
(2) "Interception" means the aural acquisition of the
contents of a communication through the use of an interception
[electronic, mechanical, or other] device that is made without the
consent of a party to the communication, but does not include the
ordinary use of:
(A) a telephone or telegraph instrument or
facility or telephone and telegraph equipment;
(B) a hearing aid designed to correct subnormal
hearing to not better than normal;
(C) a radio, television, or other wireless
receiver; or
(D) a cable system that relays a public wireless
broadcast from a common antenna to a receiver.
SECTION 3.03. Article 18.02(b), Code of Criminal Procedure,
is amended to read as follows:
(b) For purposes of Subsection (a)(13):
(1) "Electronic communication" [, "electronic
communication," "electronic storage,"] and "wire communication"
have the meanings assigned by Article 18A.001.
(2) "Electronic [18.20, and "electronic] customer
data" and "electronic storage" have [has] the meanings [meaning]
assigned by Article 18B.001 [18.21].
SECTION 3.04. Article 18.0215(d), Code of Criminal
Procedure, is amended to read as follows:
(d) Notwithstanding any other law, a peace officer may
search a cellular telephone or other wireless communications device
without a warrant if:
(1) the owner or possessor of the telephone or device
consents to the search;
(2) the telephone or device is reported stolen by the
owner or possessor; or
(3) the officer reasonably believes that:
(A) the telephone or device is in the possession
of a fugitive from justice for whom an arrest warrant has been
issued for committing a felony offense; or
(B) there exists an immediate life-threatening
situation, as defined by [Section 1,] Article 18A.201 [18.20].
SECTION 3.05. Article 18.04, Code of Criminal Procedure, is
amended to read as follows:
Art. 18.04. CONTENTS OF WARRANT. A search warrant issued
under this chapter, Chapter 18A, or Chapter 18B shall be sufficient
if it contains the following requisites:
(1) that it run in the name of "The State of Texas";
(2) that it identify, as near as may be, that which is
to be seized and name or describe, as near as may be, the person,
place, or thing to be searched;
(3) that it command any peace officer of the proper
county to search forthwith the person, place, or thing named;
(4) that it be dated and signed by the magistrate; and
(5) that the magistrate's name appear in clearly
legible handwriting or in typewritten form with the magistrate's
signature.
SECTION 3.06. Article 18.06(a), Code of Criminal Procedure,
is amended to read as follows:
(a) A peace officer to whom a search warrant is delivered
shall execute the warrant without delay and forthwith return the
warrant to the proper magistrate. A search warrant issued under
[Section 5A,] Article 18B.354 [18.21,] must be executed in the
manner provided by Article 18B.355 [that section] not later than
the 11th day after the date of issuance. In all other cases, a
search warrant must be executed within three days from the time of
its issuance. A warrant issued under this chapter, Chapter 18A, or
Chapter 18B shall be executed within a shorter period if so directed
in the warrant by the magistrate.
SECTION 3.07. Articles 18.07(a) and (b), Code of Criminal
Procedure, are amended to read as follows:
(a) The period allowed for the execution of a search
warrant, exclusive of the day of its issuance and of the day of its
execution, is:
(1) 15 whole days if the warrant is issued solely to
search for and seize specimens from a specific person for DNA
analysis and comparison, including blood and saliva samples;
(2) 10 whole days if the warrant is issued under
[Section 5A,] Article 18B.354 [18.21]; or
(3) three whole days if the warrant is issued for a
purpose other than that described by Subdivision (1) or (2).
(b) The magistrate issuing a search warrant under this
chapter, Chapter 18A, or Chapter 18B shall endorse on the search
warrant the date and hour of its issuance.
SECTION 3.08. Section 54.978(e), Government Code, is
amended to read as follows:
(e) In this subsection, ["pen register,"] "ESN reader,"
"pen register," and "trap and trace device" [device," and "mobile
tracking device"] have the meanings assigned by Article 18B.001
[Section 18.21], Code of Criminal Procedure, and "mobile tracking
device" has the meaning assigned by Article 18B.201, Code of
Criminal Procedure. A magistrate may:
(1) notwithstanding [Section 2(a),] Article 18B.051
or 18B.052 [18.21], Code of Criminal Procedure, issue an order
under Subchapter C, Chapter 18B [Section 2, Article 18.21], Code of
Criminal Procedure, for the installation and use of:
(A) a pen register;
(B) an ESN reader;
(C) a trap and trace device; or
(D) equipment that combines the function of a pen
register and a trap and trace device;
(2) issue an order to obtain access to stored
communications under [Section 5,] Article 18B.352 [18.21], Code of
Criminal Procedure; and
(3) notwithstanding [Section 14(a),] Article
18B.203(a) [18.21], Code of Criminal Procedure, issue an order for
the installation and use of a mobile tracking device under
Subchapter E, Chapter 18B [Section 14, Article 18.21], Code of
Criminal Procedure.
SECTION 3.09. Section 421.004, Government Code, is amended
to read as follows:
Sec. 421.004. PROVISIONS GOVERNING MOBILE TRACKING
DEVICES. In the event of a conflict between Subchapter E, Chapter
18B [Section 14, Article 18.21], Code of Criminal Procedure, and
this chapter or a rule adopted under this chapter, Subchapter E,
Chapter 18B [Section 14, Article 18.21], Code of Criminal
Procedure, controls.
SECTION 3.10. Section 493.0191, Government Code, is amended
to read as follows:
Sec. 493.0191. ADMINISTRATIVE SUBPOENAS. (a) The
inspector general may issue an administrative subpoena to a
communication [communications] common carrier or an electronic
communications service provider to compel the production of the
carrier's or service provider's business records that:
(1) disclose information about:
(A) the carrier's or service provider's
customers; or
(B) users of the services offered by the carrier
or service provider; and
(2) are material to a criminal investigation of an
escape or a potential escape or a violation of Section 38.11, Penal
Code.
(b) In this section:
(1) "Communication ["Communications] common carrier"
means a person that:
(A) for a fee, provides directly to the public or
to certain members of the public the ability to transmit between or
among points specified by the person who uses that ability,
regardless of the technology used, information of the person's
choosing without change in the form or content of the information
transmitted; or
(B) is a provider that bills customers for
services described by Paragraph (A).
(2) "Electronic communications service provider"
means a service provider that provides to users of the service the
ability to send or receive wire or electronic communications, as
those terms are defined by Article 18A.001 [18.20], Code of
Criminal Procedure.
SECTION 3.11. Sections 500.008(a) and (b), Government Code,
are amended to read as follows:
(a) The department may own and the office of inspector
general may possess, install, operate, or monitor an interception
[electronic, mechanical, or other] device, as defined by Article
18A.001 [18.20], Code of Criminal Procedure.
(b) The inspector general shall designate in writing the
commissioned officers of the office of inspector general who are
authorized to possess, install, operate, and monitor interception
[electronic, mechanical, or other] devices for the department.
SECTION 3.12. Section 242.841(2), Health and Safety Code,
is amended to read as follows:
(2) "Electronic monitoring device":
(A) includes:
(i) video surveillance cameras installed in
the room of a resident; and
(ii) audio devices installed in the room of
a resident designed to acquire communications or other sounds
occurring in the room; and
(B) does not include an interception
[electronic, mechanical, or other] device that is specifically used
for the nonconsensual interception of wire or electronic
communications.
SECTION 3.13. Section 242.842(c), Health and Safety Code,
is amended to read as follows:
(c) A communication or other sound acquired by an audio
electronic monitoring device installed under the provisions of this
subchapter concerning authorized electronic monitoring is not
considered to be:
(1) an oral communication as defined by [Section 1,]
Article 18A.001 [18.20], Code of Criminal Procedure; or
(2) a communication as defined by Section 123.001,
Civil Practice and Remedies Code.
SECTION 3.14. Section 555.151(2), Health and Safety Code,
is amended to read as follows:
(2) "Electronic monitoring device":
(A) includes:
(i) video surveillance cameras installed in
a resident's room; and
(ii) audio devices installed in a
resident's room designed to acquire communications or other sounds
occurring in the room; and
(B) does not include an interception
[electronic, mechanical, or other] device that is specifically used
for the nonconsensual interception of wire or electronic
communications.
SECTION 3.15. Section 555.152(c), Health and Safety Code,
is amended to read as follows:
(c) A communication or other sound acquired by an audio
electronic monitoring device installed under the provisions of this
subchapter concerning authorized electronic monitoring is not
considered to be:
(1) an oral communication as defined by [Section 1,]
Article 18A.001 [18.20], Code of Criminal Procedure; or
(2) a communication as defined by Section 123.001,
Civil Practice and Remedies Code.
SECTION 3.16. Sections 242.103(a) and (b), Human Resources
Code, are amended to read as follows:
(a) The department may own and the office of the inspector
general may possess, install, operate, or monitor an interception
[electronic, mechanical, or other] device, as defined by Article
18A.001 [18.20], Code of Criminal Procedure.
(b) The inspector general shall designate in writing the
commissioned officers of the office of inspector general who are
authorized to possess, install, operate, and monitor interception
[electronic, mechanical, or other] devices for the department.
SECTION 3.17. Section 33.01(3), Penal Code, is amended to
read as follows:
(3) "Communication ["Communications] common carrier"
means a person who owns or operates a telephone system in this state
that includes equipment or facilities for the conveyance,
transmission, or reception of communications and who receives
compensation from persons who use that system.
SECTION 3.18. Section 33.03, Penal Code, is amended to read
as follows:
Sec. 33.03. DEFENSES. It is an affirmative defense to
prosecution under Section 33.02 that the actor was an officer,
employee, or agent of a communication [communications] common
carrier or electric utility and committed the proscribed act or
acts in the course of employment while engaged in an activity that
is a necessary incident to the rendition of service or to the
protection of the rights or property of the communication
[communications] common carrier or electric utility.
SECTION 3.19. Section 38.11(k), Penal Code, is amended to
read as follows:
(k) A person commits an offense if, with the intent to
provide to or make a cellular telephone or other wireless
communications device or a component of one of those devices
available for use by a person in the custody of a correctional
facility, the person:
(1) acquires a cellular telephone or other wireless
communications device or a component of one of those devices to be
delivered to the person in custody;
(2) provides a cellular telephone or other wireless
communications device or a component of one of those devices to
another person for delivery to the person in custody; or
(3) makes a payment to a communication common carrier,
as defined by Article 18A.001 [18.20], Code of Criminal Procedure,
or to any communication service that provides to its users the
ability to send or receive wire or electronic communications.
ARTICLE 4. CONFORMING AMENDMENTS FOR CHAPTERS 60 AND 61, CODE OF
CRIMINAL PROCEDURE
SECTION 4.01. Article 2.021, Code of Criminal Procedure, is
amended to read as follows:
Art. 2.021. DUTIES OF ATTORNEY GENERAL. The attorney
general may offer to a county or district attorney the assistance of
the attorney general's office in the prosecution of an offense
described by Article 66.102(h) [60.051(g)] the victim of which is
younger than 17 years of age at the time the offense is committed.
On request of a county or district attorney, the attorney general
shall assist in the prosecution of an offense described by Article
66.102(h) [60.051(g)] the victim of which is younger than 17 years
of age at the time the offense is committed. For purposes of this
article, assistance includes investigative, technical, and
litigation assistance of the attorney general's office.
SECTION 4.02. Section 1, Article 42.01, Code of Criminal
Procedure, is amended to read as follows:
Sec. 1. A judgment is the written declaration of the court
signed by the trial judge and entered of record showing the
conviction or acquittal of the defendant. The sentence served
shall be based on the information contained in the judgment. The
judgment shall reflect:
1. The title and number of the case;
2. That the case was called and the parties appeared,
naming the attorney for the state, the defendant, and the attorney
for the defendant, or, where a defendant is not represented by
counsel, that the defendant knowingly, intelligently, and
voluntarily waived the right to representation by counsel;
3. The plea or pleas of the defendant to the offense
charged;
4. Whether the case was tried before a jury or a jury
was waived;
5. The submission of the evidence, if any;
6. In cases tried before a jury that the jury was
charged by the court;
7. The verdict or verdicts of the jury or the finding
or findings of the court;
8. In the event of a conviction that the defendant is
adjudged guilty of the offense as found by the verdict of the jury
or the finding of the court, and that the defendant be punished in
accordance with the jury's verdict or the court's finding as to the
proper punishment;
9. In the event of conviction where death or any
punishment is assessed that the defendant be sentenced to death, a
term of confinement or community supervision, or to pay a fine, as
the case may be;
10. In the event of conviction where the imposition of
sentence is suspended and the defendant is placed on community
supervision, setting forth the punishment assessed, the length of
community supervision, and the conditions of community
supervision;
11. In the event of acquittal that the defendant be
discharged;
12. The county and court in which the case was tried
and, if there was a change of venue in the case, the name of the
county in which the prosecution was originated;
13. The offense or offenses for which the defendant
was convicted;
14. The date of the offense or offenses and degree of
offense for which the defendant was convicted;
15. The term of sentence;
16. The date judgment is entered;
17. The date sentence is imposed;
18. The date sentence is to commence and any credit for
time served;
19. The terms of any order entered pursuant to Article
42.08 that the defendant's sentence is to run cumulatively or
concurrently with another sentence or sentences;
20. The terms of any plea bargain;
21. Affirmative findings entered pursuant to Article
42A.054(c) or (d);
22. The terms of any fee payment ordered under Article
42.151;
23. The defendant's thumbprint taken in accordance
with Article 38.33;
24. In the event that the judge orders the defendant to
repay a reward or part of a reward under Articles 37.073 and 42.152,
a statement of the amount of the payment or payments required to be
made;
25. In the event that the court orders restitution to
be paid to the victim, a statement of the amount of restitution
ordered and:
(A) the name and address of a person or agency
that will accept and forward restitution payments to the victim; or
(B) if the court specifically elects to have
payments made directly to the crime victim, the name and permanent
address of the victim at the time of judgment;
26. In the event that a presentence investigation is
required by Subchapter F, Chapter 42A, a statement that the
presentence investigation was done according to the applicable
provision;
27. In the event of conviction of an offense for which
registration as a sex offender is required under Chapter 62, a
statement that the registration requirement of that chapter applies
to the defendant and a statement of the age of the victim of the
offense;
28. The defendant's state identification number
required by Article 66.152(a)(2) [Section 60.052(a)(2)], if that
number has been assigned at the time of the judgment; and
29. The incident number required by Article
66.152(a)(4) [Section 60.052(a)(4)], if that number has been
assigned at the time of the judgment.
SECTION 4.03. Article 42A.507(a), Code of Criminal
Procedure, is amended to read as follows:
(a) This article applies only to a defendant who:
(1) is identified as a member of a criminal street gang
in an intelligence database established under Chapter 67 [61]; and
(2) has two or more times been previously convicted
of, or received a grant of deferred adjudication community
supervision or another functionally equivalent form of community
supervision or probation for, a felony offense under the laws of
this state, another state, or the United States.
SECTION 4.04. Section 3(b), Article 55.02, Code of Criminal
Procedure, is amended to read as follows:
(b) The order of expunction entered by the court shall have
attached and incorporate by reference a copy of the judgment of
acquittal and shall include:
(1) the following information on the person who is the
subject of the expunction order:
(A) full name;
(B) sex;
(C) race;
(D) date of birth;
(E) driver's license number; and
(F) social security number;
(2) the offense charged against the person who is the
subject of the expunction order;
(3) the date the person who is the subject of the
expunction order was arrested;
(4) the case number and court of offense; and
(5) the tracking incident number (TRN) assigned to the
individual incident of arrest under Article 66.251(b)(1)
[60.07(b)(1)] by the Department of Public Safety.
SECTION 4.05. Section 58.111, Family Code, is amended to
read as follows:
Sec. 58.111. LOCAL DATA ADVISORY BOARDS. The commissioners
court of each county may create a local data advisory board to
perform the same duties relating to the juvenile justice
information system as the duties performed by a local data advisory
board in relation to the criminal history record system under
Article 66.354 [60.09], Code of Criminal Procedure.
SECTION 4.06. Section 58.202, Family Code, is amended to
read as follows:
Sec. 58.202. EXEMPTED RECORDS. The following records are
exempt from this subchapter:
(1) sex offender registration records maintained by
the department or a local law enforcement agency under Chapter 62,
Code of Criminal Procedure; and
(2) records relating to a criminal combination or
criminal street gang maintained by the department or a local law
enforcement agency under Chapter 67 [61], Code of Criminal
Procedure.
SECTION 4.07. Section 411.048(a)(1), Government Code, is
amended to read as follows:
(1) "Criminal justice agency" has the meaning assigned
by Article 66.001 [60.01], Code of Criminal Procedure.
SECTION 4.08. Section 411.048(g), Government Code, is
amended to read as follows:
(g) An individual who is the subject of information
collected under this section may request that the director, the
director's designee, or a court review the information to determine
whether the information complies with rules adopted by the
director. The review shall be conducted using the same procedure
for reviewing criminal information collected under Chapter 67 [61],
Code of Criminal Procedure.
SECTION 4.09. Section 411.0601, Government Code, is amended
to read as follows:
Sec. 411.0601. DEFINITION. In this subchapter, "criminal
justice agency" has the meaning assigned by Article 66.001 [60.01],
Code of Criminal Procedure.
SECTION 4.10. Section 411.082(1), Government Code, is
amended to read as follows:
(1) "Administration of criminal justice" has the
meaning assigned by Article 66.001 [60.01], Code of Criminal
Procedure.
SECTION 4.11. Section 493.0155, Government Code, is amended
to read as follows:
Sec. 493.0155. PROPER IDENTIFICATION OF INMATES USING
ALIAS. On receipt of information from the Department of Public
Safety under Article 66.105 [60.19], Code of Criminal Procedure,
that a person's identifying information may have been falsely used
by an inmate as the inmate's identifying information, regardless of
whether the inmate is in the custody of the department, is serving a
period of supervised release, or has been discharged, the
department shall:
(1) make a reasonable effort to identify the inmate's
actual identity; and
(2) take action to ensure that any information
maintained in the department's records and files regarding the
inmate reflects the inmate's use of the person's identity as a
stolen alias and refers to available information concerning the
inmate's actual identity.
SECTION 4.12. Section 508.227(a), Government Code, is
amended to read as follows:
(a) This section applies only to a releasee who:
(1) is identified as a member of a criminal street gang
in an intelligence database established under Chapter 67 [61], Code
of Criminal Procedure; and
(2) has three or more times been convicted of, or
received a grant of deferred adjudication community supervision or
another functionally equivalent form of community supervision or
probation for, a felony offense under the laws of this state,
another state, or the United States.
SECTION 4.13. Section 509.004(b), Government Code, is
amended to read as follows:
(b) The division shall develop an automated tracking system
that:
(1) is capable of receiving tracking data from
community supervision and corrections departments' caseload
management and accounting systems;
(2) is capable of tracking the defendant and the
sentencing event at which the defendant was placed on community
supervision by name, arrest charge code, and incident number;
(3) provides the division with the statistical data it
needs to support budget requests and satisfy requests for
information; and
(4) is compatible with the requirements of Chapter 66
[60], Code of Criminal Procedure, and the information systems used
by the institutional division and the pardons and paroles division
of the Texas Department of Criminal Justice.
SECTION 4.14. Section 244.003(b), Human Resources Code, is
amended to read as follows:
(b) Except as provided by Section 243.051(c), these records
and all other information concerning a child, including personally
identifiable information, are not public and are available only
according to the provisions of Section 58.005, Family Code, Section
244.051 of this code, and Chapter 67 [61], Code of Criminal
Procedure.
SECTION 4.15. Section 109.001(1), Occupations Code, is
amended to read as follows:
(1) "Administration of criminal justice" and
"criminal justice agency" have the meanings assigned by Article
66.001 [60.01], Code of Criminal Procedure.
SECTION 4.16. Section 160.101(b), Occupations Code, is
amended to read as follows:
(b) Not later than the 30th day after the date a person
described by Subsection (a) is convicted of an offense listed in
that subsection or is placed on deferred adjudication for an
offense listed in that subsection, the clerk of the court in which
the person is convicted or placed on deferred adjudication shall
prepare and forward to the Department of Public Safety the
information required by Chapter 66 [60], Code of Criminal
Procedure.
SECTION 4.17. Section 521.061(e), Transportation Code, is
amended to read as follows:
(e) In this section, "criminal justice agency" has the
meaning assigned by Article 66.001 [60.01], Code of Criminal
Procedure.
ARTICLE 5. REPEALER
SECTION 5.01. The following provisions of the Code of
Criminal Procedure are repealed:
(1) Article 18.20;
(2) Article 18.21;
(3) Chapter 60; and
(4) Chapter 61.
ARTICLE 6. GENERAL MATTERS
SECTION 6.01. This Act is enacted under Section 43, Article
III, Texas Constitution. This Act is intended as a codification
only, and no substantive change in the law is intended by this Act.
SECTION 6.02. This Act takes effect April 1, 2019.